Welcome to legal advice
Sunday, July 29, 2007
How To Fight A New York Speeding Ticket at the Traffic Violations Bureau
The first step is to compute how many points are involved with the New York State speeding ticket you have been given.
The following chart will help you figure this out:
1 - 10 mph over speed limit - 3 points
11 - 20 mph over speed limit - 4 points
21 - 30 mph over speed limit - 6 points
31 - 40 mph over speed limit (possible suspension) - 8 points
More than 40 mph over speed limit (possible suspension) - 11 points
Points are measured from the date of offense (even if you are convicted years later). So when adding the possible points for a newly issued speeding ticket. you must go back 18 months from the date of the new ticket and determine how many other points you have on your record. Also, three speeding convictions within 18 months will result in an automatic revocation in your driving privileges for 6 months.
The next step is to determine whether your case is returnable at a Traffic Violations Bureau (TVB) court or not. There are two, very different traffic court systems in New York State and, therefore, this determination is important for you to understand what you can and cannot do. If you are not within the TVB, then usually you can resolve the case by a plea deal.
The TVB courts cover any New York traffic ticket issued in New York City (Manhattan, Bronx, Brooklyn, Queens and Staten Island), western Suffolk, Buffalo and Rochester. A New York speeding ticket issued in any other place within New York State will not be a TVB court.
The reason this is an important inquiry is that TVB courts generally do not allow any type of deal-making or plea bargaining. Rather, you must either plead guilty or not guilty and, if you plead not guilty, you are given a hearing where you will either win or lose. In this "all or nothing" court, it really pays to retain an New York traffic lawyer to fight your case. That is, a New York traffic attorney who is experienced and knowledgeable in fighting speeding tickets at the TVB. Putting aside the emotions involved with fighting your own case, most motorists do not know how to listen carefully or cross examine. Rather, they basically ignore the officer's testimony, fail to ask any questions and, instead, just tell the judge their story. This incomplete approach is not recommended and is clearly not effective.
If you do fight your own TVB speeding ticket, listen carefully to the officer's testimony and even take notes. If the officer omits critical testimony (ex., date, time, location, direction, your ID information), then point this out to the judge after the officer rests. Similarly, if the officer gives testimony which is inconsistent with his other testimony or the information on the ticket, then likewise point this out to the judge.
For instance, I once was fighting a NYC speeding ticket when the officer testified that the motorist was proceeding east bound on the Long Island Expressway. The ticket, however, indicated W/B or west bound. After the officer rested, I showed the ticket to the judge who promptly dismissed the case.
Even without an omission or inconsistency, you should still ask thoughtful questions of the officer. For example, if your defense is that the officer pulled over the wrong car, then ask him where was he when he first saw your car, did he have to pass any other cars to apprehend your car, and how long did it take him or apprehend you. These types of questions build on your defense.
Also, ask to the see the officer's notes. Read them and determine whether his notes are consistent with his testimony. Any discrepancy should be pointed out to the judge. Also, do not be afraid to ask the officer to decipher illegible portions of his notes.
After your cross examination of the officer, it is time for you to offer your defense. Speak slowly and clearly. Hand up any evidence supporting your defense such as photos, witness statements or diagrams. Keep in mind that the judge hears many, many such cases and, therefore, you should not be repetitive or rambling about irrelevant information.
One last tip. Prior to fighting your case, watch the judge and how he handles other cases. Does he listen and take notes? Does he seem impatient or distracted? If you are concerned about whether you will get a fair hearing, ask for a new date. It is unlikely that you will get the same judge on the next assigned date.
The following chart will help you figure this out:
1 - 10 mph over speed limit - 3 points
11 - 20 mph over speed limit - 4 points
21 - 30 mph over speed limit - 6 points
31 - 40 mph over speed limit (possible suspension) - 8 points
More than 40 mph over speed limit (possible suspension) - 11 points
Points are measured from the date of offense (even if you are convicted years later). So when adding the possible points for a newly issued speeding ticket. you must go back 18 months from the date of the new ticket and determine how many other points you have on your record. Also, three speeding convictions within 18 months will result in an automatic revocation in your driving privileges for 6 months.
The next step is to determine whether your case is returnable at a Traffic Violations Bureau (TVB) court or not. There are two, very different traffic court systems in New York State and, therefore, this determination is important for you to understand what you can and cannot do. If you are not within the TVB, then usually you can resolve the case by a plea deal.
The TVB courts cover any New York traffic ticket issued in New York City (Manhattan, Bronx, Brooklyn, Queens and Staten Island), western Suffolk, Buffalo and Rochester. A New York speeding ticket issued in any other place within New York State will not be a TVB court.
The reason this is an important inquiry is that TVB courts generally do not allow any type of deal-making or plea bargaining. Rather, you must either plead guilty or not guilty and, if you plead not guilty, you are given a hearing where you will either win or lose. In this "all or nothing" court, it really pays to retain an New York traffic lawyer to fight your case. That is, a New York traffic attorney who is experienced and knowledgeable in fighting speeding tickets at the TVB. Putting aside the emotions involved with fighting your own case, most motorists do not know how to listen carefully or cross examine. Rather, they basically ignore the officer's testimony, fail to ask any questions and, instead, just tell the judge their story. This incomplete approach is not recommended and is clearly not effective.
If you do fight your own TVB speeding ticket, listen carefully to the officer's testimony and even take notes. If the officer omits critical testimony (ex., date, time, location, direction, your ID information), then point this out to the judge after the officer rests. Similarly, if the officer gives testimony which is inconsistent with his other testimony or the information on the ticket, then likewise point this out to the judge.
For instance, I once was fighting a NYC speeding ticket when the officer testified that the motorist was proceeding east bound on the Long Island Expressway. The ticket, however, indicated W/B or west bound. After the officer rested, I showed the ticket to the judge who promptly dismissed the case.
Even without an omission or inconsistency, you should still ask thoughtful questions of the officer. For example, if your defense is that the officer pulled over the wrong car, then ask him where was he when he first saw your car, did he have to pass any other cars to apprehend your car, and how long did it take him or apprehend you. These types of questions build on your defense.
Also, ask to the see the officer's notes. Read them and determine whether his notes are consistent with his testimony. Any discrepancy should be pointed out to the judge. Also, do not be afraid to ask the officer to decipher illegible portions of his notes.
After your cross examination of the officer, it is time for you to offer your defense. Speak slowly and clearly. Hand up any evidence supporting your defense such as photos, witness statements or diagrams. Keep in mind that the judge hears many, many such cases and, therefore, you should not be repetitive or rambling about irrelevant information.
One last tip. Prior to fighting your case, watch the judge and how he handles other cases. Does he listen and take notes? Does he seem impatient or distracted? If you are concerned about whether you will get a fair hearing, ask for a new date. It is unlikely that you will get the same judge on the next assigned date.
What Is Criminal Law?
Crime is an inexcusable offence that may take different forms. For example, sedition, treason and espionage are crimes against the state where as murder, rape, kidnapping and assault are crimes against a person. Under criminal law, the government always files the suit where as in case of civil law a private party always files the suit.
Criminal law explains criminal offences and its elements and the punishment for the convicted offenders as an effective means of social control. The most important feature of the U.S. criminal law is its provision for common punishment. Certain criminal laws prescribe rules and regulations to observe and maintain higher standards of conduct. For example, helping the police in investigation when asked to do so and reporting to authorities immediately after a culprit is identified are examples of moral or ethical criminal laws.
According to the U.S. constitution there are certain crimes called strict liability crimes like drug abuse and weapon offences where the act itself is sufficient to punish the offender. Here the criminal law imposes liability without fail. In the U.S. crimes like conspiracy, terrorism and sexual harassment are dealt under inchoate crime laws where anyone aiding in planning and execution of the crime is subjected to the same penalties as a person who actually commits the crime. The crime could be the result of a direct cause or a legal cause or an intervening cause. Therefore, criminal law gives immense importance to the concept of causation.
Everybody wants the criminal to be punished for the crime he has committed. Penalties should be of such nature that the criminal would not dare repeat the act he has committed.
Criminal law explains criminal offences and its elements and the punishment for the convicted offenders as an effective means of social control. The most important feature of the U.S. criminal law is its provision for common punishment. Certain criminal laws prescribe rules and regulations to observe and maintain higher standards of conduct. For example, helping the police in investigation when asked to do so and reporting to authorities immediately after a culprit is identified are examples of moral or ethical criminal laws.
According to the U.S. constitution there are certain crimes called strict liability crimes like drug abuse and weapon offences where the act itself is sufficient to punish the offender. Here the criminal law imposes liability without fail. In the U.S. crimes like conspiracy, terrorism and sexual harassment are dealt under inchoate crime laws where anyone aiding in planning and execution of the crime is subjected to the same penalties as a person who actually commits the crime. The crime could be the result of a direct cause or a legal cause or an intervening cause. Therefore, criminal law gives immense importance to the concept of causation.
Everybody wants the criminal to be punished for the crime he has committed. Penalties should be of such nature that the criminal would not dare repeat the act he has committed.
A Calamity of Justice - The Genarlow Wilson Case
Is it possible for a 17-year-old to go to jail for a decade for having consensual oral sex with a 15-year-old? In the state of Georgia—before they modified the law—the answer was yes. Every once in a while a case comes along that shocks the conscious of most good-natured people, this case I assure you is one of them.
Genarlow Wilson was a high school senior and age 17 at the time of his alleged criminal offense. He received a 10-year prison sentence because at age 17 he engaged in a voluntary act of oral sex with a 15-year-old female classmate. No violence or assault was asserted or raised in any of the police reports or at trial as to the 15 year old. His conviction for aggravated child molestation was based solely on the fact that the female was 15, which is below Georgia’s legal age of consent of 16. However, the sex act in lay terms was “consensual” – that is, agreed to by both teens.
Genarlow Wilson has already served approximately thirty months in prison for this crime. What shocks the conscious here is that had they engaged in sexual intercourse, Mr. Wilson would have only served a maximum term of 12 months and would not be required to register as a lifetime sex offender. How is this possible you might ask? In Georgia—before they modified the law—When a 17-year-old male has intercourse with a 15-year-old female, statutory rape sets the maximum punishment at 12 months for a misdemeanor conviction with no sex offender registration. When that same 17-year-old male receives oral sex from a 15-year-old female, that teen is supposedly guilty of aggravated child molestation which dictates a mandatory 10 years in prison and lifetime sex offender registry. This, unfortunately for Mr. Wilson and the entire judicial system, is a case of an old outdated Georgia Law being steadfastly upheld by what must be an over zealous Assistant District Attorney, more specifically James E. Barker, who lacks the common prosecutorial discretion of most good district attorneys.
The archaic Georgia law that Mr. Wilson has been convicted of violating has been subsequently re-written. The law now more accurately represents what most states have in terms of the age of sexual consent and child molestation laws. The new law now reads that a person is convicted of the offense of aggravated child molestation when: (A) The victim is at least 13 but less than 16 years of age; (B) The person convicted of aggravated child molestation is 18 years of age or younger and is no more than four years older than the victim. This legislature similarly amended the code sections for child molestation and Enticing a Child for Indecent Purposes to grant misdemeanor status without sex offender registration for sexual acts when the victim is at least 14 but less than 16 years of age and the person convicted is 18 years of age or younger and is no more than four years older than the victim. The legislature also amended the statutory rape provision to reflect the same 4-year differential in age between teens to grant misdemeanor status without sex offender registration for acts of intercourse. I presume that the Georgia legislature made the changes in the law in light of this case. What they failed to do, however, was make these laws retroactive. Had they made the laws retroactive, Mr. Wilson would be a free man today. I assume that the Legislature could not stomach the release of what probably amounts to hundreds or maybe even thousands of individuals incarcerated who might qualify under the retroaction.
Either my classification of Mr. Barker is accurate or something else is afoot in this case. In the interest of impartiality, I offer one possible scenario. They only other possible reason that I can think of as to why Mr. Barker is holding steadfast on this conviction is that some other evidence must have been excluded from trial that brings to light the commission of a more serious crime by Mr. Wilson. If the district attorney lacks the evidence to prosecute on that crime he may feel as if the punishment is warranted for what actually took place despite the seemingly harmless nature of two young teenagers engaging in oral sex. I am not sure on this, but it is the only possible scenario that I can think of other than the prosecutor’s total disregard for discretion. If this is the case, the district attorney would still be in the wrong because he would in a sense be circumventing the judicial system by not having Mr. Wilson tried on the merits of the evidence for that more serious crime.
Genarlow Wilson was a high school senior and age 17 at the time of his alleged criminal offense. He received a 10-year prison sentence because at age 17 he engaged in a voluntary act of oral sex with a 15-year-old female classmate. No violence or assault was asserted or raised in any of the police reports or at trial as to the 15 year old. His conviction for aggravated child molestation was based solely on the fact that the female was 15, which is below Georgia’s legal age of consent of 16. However, the sex act in lay terms was “consensual” – that is, agreed to by both teens.
Genarlow Wilson has already served approximately thirty months in prison for this crime. What shocks the conscious here is that had they engaged in sexual intercourse, Mr. Wilson would have only served a maximum term of 12 months and would not be required to register as a lifetime sex offender. How is this possible you might ask? In Georgia—before they modified the law—When a 17-year-old male has intercourse with a 15-year-old female, statutory rape sets the maximum punishment at 12 months for a misdemeanor conviction with no sex offender registration. When that same 17-year-old male receives oral sex from a 15-year-old female, that teen is supposedly guilty of aggravated child molestation which dictates a mandatory 10 years in prison and lifetime sex offender registry. This, unfortunately for Mr. Wilson and the entire judicial system, is a case of an old outdated Georgia Law being steadfastly upheld by what must be an over zealous Assistant District Attorney, more specifically James E. Barker, who lacks the common prosecutorial discretion of most good district attorneys.
The archaic Georgia law that Mr. Wilson has been convicted of violating has been subsequently re-written. The law now more accurately represents what most states have in terms of the age of sexual consent and child molestation laws. The new law now reads that a person is convicted of the offense of aggravated child molestation when: (A) The victim is at least 13 but less than 16 years of age; (B) The person convicted of aggravated child molestation is 18 years of age or younger and is no more than four years older than the victim. This legislature similarly amended the code sections for child molestation and Enticing a Child for Indecent Purposes to grant misdemeanor status without sex offender registration for sexual acts when the victim is at least 14 but less than 16 years of age and the person convicted is 18 years of age or younger and is no more than four years older than the victim. The legislature also amended the statutory rape provision to reflect the same 4-year differential in age between teens to grant misdemeanor status without sex offender registration for acts of intercourse. I presume that the Georgia legislature made the changes in the law in light of this case. What they failed to do, however, was make these laws retroactive. Had they made the laws retroactive, Mr. Wilson would be a free man today. I assume that the Legislature could not stomach the release of what probably amounts to hundreds or maybe even thousands of individuals incarcerated who might qualify under the retroaction.
Either my classification of Mr. Barker is accurate or something else is afoot in this case. In the interest of impartiality, I offer one possible scenario. They only other possible reason that I can think of as to why Mr. Barker is holding steadfast on this conviction is that some other evidence must have been excluded from trial that brings to light the commission of a more serious crime by Mr. Wilson. If the district attorney lacks the evidence to prosecute on that crime he may feel as if the punishment is warranted for what actually took place despite the seemingly harmless nature of two young teenagers engaging in oral sex. I am not sure on this, but it is the only possible scenario that I can think of other than the prosecutor’s total disregard for discretion. If this is the case, the district attorney would still be in the wrong because he would in a sense be circumventing the judicial system by not having Mr. Wilson tried on the merits of the evidence for that more serious crime.
Types of Law
Every citizen ought to know the Law of the Land. There is no excuse for not knowing the law. It will not help a person defend him or herself in a legal crisis. Ignorance can never be explained away.
Even when you have not acted against the law, you might need to know the law in order to protect yourself from people who might violate the law. To know ones rights and privileges is not only beneficial, it is absolutely essential. You will never know when the information you have at your disposal might come in handy. Having it ready before any crisis strikes will help you take immensely wiser and more informed decisions which you will not regret later. Just as there are varied disciplines in the field of medicine, there is a wide range of divisions when it comes to law. For instance, everyone knows that you don't visit a general physician for a severe heart ailment. You want to consult a heart specialist in this case. Likewise, for every particular type of law, there are specific attorneys who specialize in that particular field. It really helps to search and identify the suitable attorney for your particular case, instead of heading to the nearest or most familiar attorney for every case.
This article briefly lists the types of law:
Admiralty LawThe Admiralty Law is also known as Maritime Law and governs all U.S. All countries have maritime laws and they are responsible for their vessels regardless of which ocean they are sailing in. Admiralty Law Attorneys represent cases of all matters concerning cargo disputes, oil pollution, fishing regulations, international trade, cargo and injury that takes place on docks and vessels. Admiralty Law Attorneys also offer advice on trade laws, legal matters concerning environmental groups and the protection of endangered species. Admiralty Law also covers freight and passenger liabilities.
Aviation LawLaws have been instituted by state and federal governments to enhance safety in air traffic. Aviation Laws in the United States govern aircraft operations and the maintenance of aircraft facilities.
Bankruptcy LawWhen an individual or a company files for relief of debt, it is termed as Bankruptcy. In the United States, there are specific courts that handle bankruptcy rulings and specialty attorneys who handle these cases. A fundamental goal of the federal bankruptcy laws enacted by Congress is to give debtors a financial "fresh start" from burdensome debts.
Civil RightsA Civil Rights Attorney has the responsibility of defending the rights and privileges granted to all United States citizens. These include freedom from slavery, freedom to vote, freedom of assembly, freedom of the press, freedom of speech and the right to be treated fairly in public places.
Consumer RightsThe Attorney General of a particular state houses the division of Consumer protection and its team of consumer fraud attorneys. Complaints about misleading advertising or business practices that are unlawful can be filed and that division investigates and mediates on behalf of the consumer.
Corporate LawA corporation is a legal entity created through the laws of its state of incorporation. Individual states have the power to disseminate laws relating to the creation, organization and dissolution of corporations. Many states follow the Model Business Corporation Act.
Criminal LawA "crime" is any act or omission (of an act) in violation of a public law forbidding or commanding it. Though there are some common law crimes, most crimes in the United States are established by local, state, and federal governments. Criminal laws vary significantly from state to state. There is, however, a Model Penal Code which serves as a good starting place to gain an understanding of the basic structure of criminal liability.
EducationEach state is required by its state constitution to provide a school system whereby children may receive an education. State legislatures exercise power over schools in any manner consistent with the state's constitution. Many state legislatures delegate power over the school system to a state board of education.
Elder LawThe three major categories that make up elder law are Estate planning and administration, including tax questions; Medicaid, disability and other long-term care issues; and Guardianship, conservatorship and commitment matters, including fiduciary administration.
Employment LawEmployment law is a broad area encompassing all areas of the employer/employee relationship except the negotiation process covered by labor law and collective bargaining. Employment law consists of thousands of Federal and state statutes, administrative regulations, and judicial decisions.
Entertainment LawEntertainment attorneys use multiple areas of legal practice to advise and represent their clients. The different types of employment make knowledge of diverse legal practices necessary for the good entertainment lawyer.
Family LawFamily law is an area of the law that deals with family-related issues and domestic relations including, but not limited to the nature of marriage, civil unions, and domestic partnerships; issues arising during marriage, including spousal abuse, legitimacy, adoption, surrogacy, child abuse, and child abduction; the termination of the relationship and ancillary matters including divorce, annulment, property settlements, alimony, and parental responsibility orders.
Immigration LawFederal immigration law determines whether a person is an alien, and associated legal rights, duties, and obligations of aliens in the United States. It also provides means by which certain aliens can become naturalized citizens with full rights of citizenship.
Intellectual PropertyPatents, copyrights, trademarks and related interests are known as intellectual property (IP). It has not been long since patents especially were regarded in U.S. courts, and the Supreme Court in particular, as tools of monopolists, and their owners often fared poorly.
Labor LawThe goal of labor laws is to equalize the bargaining power between employers and employees. The laws primarily deal with the relationship between employers and unions.
Military LawThe Constitution grants to Congress the power to raise and support armies and a navy, to suppress insurrections, and repel invasion among other military-related governmental roles.
Personal Injury LawTorts are civil wrongs recognized by law as grounds for a lawsuit. These wrongs result in an injury or harm constituting the basis for a claim by the injured party. While some torts are also crimes punishable with imprisonment, the primary aim of tort law is to provide relief for the damages incurred and deter others from committing the same harms. The injured person may sue for an injunction to prevent the continuation of the tortious conduct or for monetary damages.
Product LiabilityProducts liability refers to the liability of any or all parties along the chain of manufacture of any product for damage caused by that product. This includes the manufacturer of component parts (at the top of the chain), an assembling manufacturer, the wholesaler, and the retail store owner (at the bottom of the chain).
Real EstateReal estate transactions are governed by a wide body of federal statutes and state statutory and common law. The requirements established by state law often differ significantly from one state to the next.
TaxationTaxation in the United States is a complex system which may involve payment to at least four different levels of government and many methods of taxation. United States taxation includes local government, possibly including one or more of municipal, township, district and county governments. It also includes regional entities such as school and utility, and transit districts as well as including state and federal government.
Even when you have not acted against the law, you might need to know the law in order to protect yourself from people who might violate the law. To know ones rights and privileges is not only beneficial, it is absolutely essential. You will never know when the information you have at your disposal might come in handy. Having it ready before any crisis strikes will help you take immensely wiser and more informed decisions which you will not regret later. Just as there are varied disciplines in the field of medicine, there is a wide range of divisions when it comes to law. For instance, everyone knows that you don't visit a general physician for a severe heart ailment. You want to consult a heart specialist in this case. Likewise, for every particular type of law, there are specific attorneys who specialize in that particular field. It really helps to search and identify the suitable attorney for your particular case, instead of heading to the nearest or most familiar attorney for every case.
This article briefly lists the types of law:
Admiralty LawThe Admiralty Law is also known as Maritime Law and governs all U.S. All countries have maritime laws and they are responsible for their vessels regardless of which ocean they are sailing in. Admiralty Law Attorneys represent cases of all matters concerning cargo disputes, oil pollution, fishing regulations, international trade, cargo and injury that takes place on docks and vessels. Admiralty Law Attorneys also offer advice on trade laws, legal matters concerning environmental groups and the protection of endangered species. Admiralty Law also covers freight and passenger liabilities.
Aviation LawLaws have been instituted by state and federal governments to enhance safety in air traffic. Aviation Laws in the United States govern aircraft operations and the maintenance of aircraft facilities.
Bankruptcy LawWhen an individual or a company files for relief of debt, it is termed as Bankruptcy. In the United States, there are specific courts that handle bankruptcy rulings and specialty attorneys who handle these cases. A fundamental goal of the federal bankruptcy laws enacted by Congress is to give debtors a financial "fresh start" from burdensome debts.
Civil RightsA Civil Rights Attorney has the responsibility of defending the rights and privileges granted to all United States citizens. These include freedom from slavery, freedom to vote, freedom of assembly, freedom of the press, freedom of speech and the right to be treated fairly in public places.
Consumer RightsThe Attorney General of a particular state houses the division of Consumer protection and its team of consumer fraud attorneys. Complaints about misleading advertising or business practices that are unlawful can be filed and that division investigates and mediates on behalf of the consumer.
Corporate LawA corporation is a legal entity created through the laws of its state of incorporation. Individual states have the power to disseminate laws relating to the creation, organization and dissolution of corporations. Many states follow the Model Business Corporation Act.
Criminal LawA "crime" is any act or omission (of an act) in violation of a public law forbidding or commanding it. Though there are some common law crimes, most crimes in the United States are established by local, state, and federal governments. Criminal laws vary significantly from state to state. There is, however, a Model Penal Code which serves as a good starting place to gain an understanding of the basic structure of criminal liability.
EducationEach state is required by its state constitution to provide a school system whereby children may receive an education. State legislatures exercise power over schools in any manner consistent with the state's constitution. Many state legislatures delegate power over the school system to a state board of education.
Elder LawThe three major categories that make up elder law are Estate planning and administration, including tax questions; Medicaid, disability and other long-term care issues; and Guardianship, conservatorship and commitment matters, including fiduciary administration.
Employment LawEmployment law is a broad area encompassing all areas of the employer/employee relationship except the negotiation process covered by labor law and collective bargaining. Employment law consists of thousands of Federal and state statutes, administrative regulations, and judicial decisions.
Entertainment LawEntertainment attorneys use multiple areas of legal practice to advise and represent their clients. The different types of employment make knowledge of diverse legal practices necessary for the good entertainment lawyer.
Family LawFamily law is an area of the law that deals with family-related issues and domestic relations including, but not limited to the nature of marriage, civil unions, and domestic partnerships; issues arising during marriage, including spousal abuse, legitimacy, adoption, surrogacy, child abuse, and child abduction; the termination of the relationship and ancillary matters including divorce, annulment, property settlements, alimony, and parental responsibility orders.
Immigration LawFederal immigration law determines whether a person is an alien, and associated legal rights, duties, and obligations of aliens in the United States. It also provides means by which certain aliens can become naturalized citizens with full rights of citizenship.
Intellectual PropertyPatents, copyrights, trademarks and related interests are known as intellectual property (IP). It has not been long since patents especially were regarded in U.S. courts, and the Supreme Court in particular, as tools of monopolists, and their owners often fared poorly.
Labor LawThe goal of labor laws is to equalize the bargaining power between employers and employees. The laws primarily deal with the relationship between employers and unions.
Military LawThe Constitution grants to Congress the power to raise and support armies and a navy, to suppress insurrections, and repel invasion among other military-related governmental roles.
Personal Injury LawTorts are civil wrongs recognized by law as grounds for a lawsuit. These wrongs result in an injury or harm constituting the basis for a claim by the injured party. While some torts are also crimes punishable with imprisonment, the primary aim of tort law is to provide relief for the damages incurred and deter others from committing the same harms. The injured person may sue for an injunction to prevent the continuation of the tortious conduct or for monetary damages.
Product LiabilityProducts liability refers to the liability of any or all parties along the chain of manufacture of any product for damage caused by that product. This includes the manufacturer of component parts (at the top of the chain), an assembling manufacturer, the wholesaler, and the retail store owner (at the bottom of the chain).
Real EstateReal estate transactions are governed by a wide body of federal statutes and state statutory and common law. The requirements established by state law often differ significantly from one state to the next.
TaxationTaxation in the United States is a complex system which may involve payment to at least four different levels of government and many methods of taxation. United States taxation includes local government, possibly including one or more of municipal, township, district and county governments. It also includes regional entities such as school and utility, and transit districts as well as including state and federal government.
Rhode Island Divorce - What is Condonation?
Brad and Sandy have been married for 12 years. Brad feels a bit neglected by Sandy who has been spending the vast majority of her time with the kids. Brad tells Sandy that it's bothering him and that he feels that they need more quality time.
Sandy continues to spend the vast majority of time that she has available with their children. Brad starts working out at Gold's Gym in his spare time and meets Katie, a slim blonde haired aerobics instructor. They strike up a friendship and as the months continue with Sandy spending time with the children Brad strays and has a hot evening with Katie.
Sandy finds out about it and is heartbroken. Brad talks to her and reminds her that this might not have happened if she had been a bit more receptive to spending time with him. Sandy starts thinking about all the times Brad tried to spend time with her and realizes she's been preoccupied with the children a bit. She and Brad talk things out and rather than kick him out she allows him to remain in the house, continues to share the same bed with him and has more regular intercourse with Brad.
Brad, however, likes the way it feels when he works out and he bought a 2 year membership to Gold's Gym so he keeps going to that gym. Of course, Katie is still at Gold's Gym because she works there. Sandy finds out that it was Katie from the gym that Brad slept with. She is furious and demands that Brad quit the gym.
Brad has told Katie there's nothing between them and Brad hasn't made any advances at all.
Still, Sandy is very upset and doesn't want Brad around Katie. Brad won't quit the gym as she demands. Sandy changes the locks on the house and files a Complaint for Divorce in the Providence Rhode Island Family Court alleging infidelity.
Here's the problem: Sandy has participated in condonation. By taking Brad back after the affair and particularly by having intercourse with him as husband and wife, she has condoned his actions and essentially nullified any basis they have for the actual breakdown of the marriage.
Thus, condonation is when one spouse, who is aware of the infidelity of another spouse, takes that spouse back and has intercourse as if the marital relationship had never broken down.
Condonation is a defense to a complaint for divorce based on infidelity that occurred before the spouses got back together.
Sandy continues to spend the vast majority of time that she has available with their children. Brad starts working out at Gold's Gym in his spare time and meets Katie, a slim blonde haired aerobics instructor. They strike up a friendship and as the months continue with Sandy spending time with the children Brad strays and has a hot evening with Katie.
Sandy finds out about it and is heartbroken. Brad talks to her and reminds her that this might not have happened if she had been a bit more receptive to spending time with him. Sandy starts thinking about all the times Brad tried to spend time with her and realizes she's been preoccupied with the children a bit. She and Brad talk things out and rather than kick him out she allows him to remain in the house, continues to share the same bed with him and has more regular intercourse with Brad.
Brad, however, likes the way it feels when he works out and he bought a 2 year membership to Gold's Gym so he keeps going to that gym. Of course, Katie is still at Gold's Gym because she works there. Sandy finds out that it was Katie from the gym that Brad slept with. She is furious and demands that Brad quit the gym.
Brad has told Katie there's nothing between them and Brad hasn't made any advances at all.
Still, Sandy is very upset and doesn't want Brad around Katie. Brad won't quit the gym as she demands. Sandy changes the locks on the house and files a Complaint for Divorce in the Providence Rhode Island Family Court alleging infidelity.
Here's the problem: Sandy has participated in condonation. By taking Brad back after the affair and particularly by having intercourse with him as husband and wife, she has condoned his actions and essentially nullified any basis they have for the actual breakdown of the marriage.
Thus, condonation is when one spouse, who is aware of the infidelity of another spouse, takes that spouse back and has intercourse as if the marital relationship had never broken down.
Condonation is a defense to a complaint for divorce based on infidelity that occurred before the spouses got back together.
Rhode Island Divorce - Debt Issues Can be Tricky!
Many times it is the debts that can be the trickiest part of the Rhode Island Divorce. In particular, one phrase you will often hear attorneys and mediators use is "indemnify and hold harmless".
Let me use it in the context of a Rhode Island Divorce Decree so that you can get a true understanding of how it is used.
1. The Husband shall be solely responsible for the remaining balance on the Capital One VISA which is $3,488.00 and shall indemnify and hold the wife harmless with respect to same.
The language is important even though to some it looks like a bunch of legal gobbledy gook.
Let's look at the word "indemnify". In the context of this Rhode Island Divorce decree provision, this means the husband must secure and even guarantee the spouse against legal responsibility for the Capital One VISA debt of $3,488.00. For instance, if the wife were to get sued over this debt, this provision would require him to defend her, possibly pay her attorneys' fees and costs, and even pay any judgment and continuing interest that might be rendered against her.
Now let's look at the words "and hold the wife harmless". The words mean exactly what they say. The husband must hold the wife completely harmless from any . . . and that's the key word. . . ANY. . . harm she may sustain relating to that debt.
For instance, let's say that except for that Capital One VISA debt that the wife has impeccable credit. Yet her husband has not paid the obligation on time and is three payments behind. The wife tries to apply for a mortgage for a house and is denied because of the late payments by the husband. In fact, she can't get a mortgage anywhere. The husband now has a problem because he must hold the wife harmless for any damages relating to that debt obligation.
The question is actually, how will the court's treat it if the parties return to court. The husband might be found in contempt of court for Provision #1 of the Rhode Island Divorce Decree but what is the remedy. The husband cannot reverse time and make the payments on time. The damage has been done. What remedy might the judge use?
Let me use it in the context of a Rhode Island Divorce Decree so that you can get a true understanding of how it is used.
1. The Husband shall be solely responsible for the remaining balance on the Capital One VISA which is $3,488.00 and shall indemnify and hold the wife harmless with respect to same.
The language is important even though to some it looks like a bunch of legal gobbledy gook.
Let's look at the word "indemnify". In the context of this Rhode Island Divorce decree provision, this means the husband must secure and even guarantee the spouse against legal responsibility for the Capital One VISA debt of $3,488.00. For instance, if the wife were to get sued over this debt, this provision would require him to defend her, possibly pay her attorneys' fees and costs, and even pay any judgment and continuing interest that might be rendered against her.
Now let's look at the words "and hold the wife harmless". The words mean exactly what they say. The husband must hold the wife completely harmless from any . . . and that's the key word. . . ANY. . . harm she may sustain relating to that debt.
For instance, let's say that except for that Capital One VISA debt that the wife has impeccable credit. Yet her husband has not paid the obligation on time and is three payments behind. The wife tries to apply for a mortgage for a house and is denied because of the late payments by the husband. In fact, she can't get a mortgage anywhere. The husband now has a problem because he must hold the wife harmless for any damages relating to that debt obligation.
The question is actually, how will the court's treat it if the parties return to court. The husband might be found in contempt of court for Provision #1 of the Rhode Island Divorce Decree but what is the remedy. The husband cannot reverse time and make the payments on time. The damage has been done. What remedy might the judge use?
Rhode Island Divorce - Guardian Ad Litems for Adults
Appointing a guardian ad litem for adults in Rhode Island divorce cases isn't very common but it does occur. Typically a guardian ad litem is an attorney (though the guidelines have changed recently to include non-lawyers particularly experienced and trained in dealing with people and issues requiring a guardian's skills) appointed by the court to represent the "best interests" of the individual and to make recommendations to the court as to what is in the person's best interests.
Now I put "best interests" in quotes because it is significantly different from simply representing the individual.
When an attorney or other person represents an individual they generally speak for that individual and advocate for exactly what that person wants. That is not what a guardian ad litem does.
Using appropriate factors the guardian ad litem uses his or her judgment to review he circumstances, speak with the individual, look at the case, review pertinent case law, perhaps even review medical records and ultimately recommend to the court what should be done in the "best interests" of the person that they are appointed to be the guardian for. This is true even if the recommendations to the court are entirely contrary to what the individual wants done.
Thus, if John and Sarah are in a divorce and Sarah has a multiple personality disorder and goes back and forth between wanting one day of visitation with her children per week or 2 overnights and 3 full weekends per month for her visitation then the court might determine that Sarah, even with the assistance of her lawyer might not be in a correct state of mind to make the best decision for herself and for her children.
As a result, a judge may order that either Sarah, her children or both... have Guardian Ad Litems appointed for that proceeding.
Assume for a moment that Sarah has a guardian appointed and that the guardian for Sarah, after reviewing all the evidence in her Rhode Island divorce case, her medical records, etc.... that it would, in fact, be best that she see her children more often, yet the guardian finds that Sarah has not been taking her prescribed medication to keep her condition under control and has missed over half of her counseling appointments.
Sarah's guardian ad litem may recommend to the court that Sarah have only one visit per week with her children until she shows that she can take her medicine and attend counseling on a regular basis to promote Sarah to make more progress for herself and for the benefit of a healthier relationship with her children. This could very well be against Sarah's outrage and protests.
It is important to understand that in a Rhode Island Divorce proceeding, a Guardian Ad Litem represents the best interests of the person they are appointed to serve. This does not mean they serve at the whim of the client or that they must do what the person they are appointed to represent controls their actions or the position they take.
A lawyer represents the client's interests and follows the client's directions within the reasonable direction of the client.
A guardian ad litem appointed by the court (or ever privately) represents the "best interests" of the person (s) they are appointed for, even if their advice, recommendation or counsel to the court is against the wishes of the person they have been appointed to represent.
Now I put "best interests" in quotes because it is significantly different from simply representing the individual.
When an attorney or other person represents an individual they generally speak for that individual and advocate for exactly what that person wants. That is not what a guardian ad litem does.
Using appropriate factors the guardian ad litem uses his or her judgment to review he circumstances, speak with the individual, look at the case, review pertinent case law, perhaps even review medical records and ultimately recommend to the court what should be done in the "best interests" of the person that they are appointed to be the guardian for. This is true even if the recommendations to the court are entirely contrary to what the individual wants done.
Thus, if John and Sarah are in a divorce and Sarah has a multiple personality disorder and goes back and forth between wanting one day of visitation with her children per week or 2 overnights and 3 full weekends per month for her visitation then the court might determine that Sarah, even with the assistance of her lawyer might not be in a correct state of mind to make the best decision for herself and for her children.
As a result, a judge may order that either Sarah, her children or both... have Guardian Ad Litems appointed for that proceeding.
Assume for a moment that Sarah has a guardian appointed and that the guardian for Sarah, after reviewing all the evidence in her Rhode Island divorce case, her medical records, etc.... that it would, in fact, be best that she see her children more often, yet the guardian finds that Sarah has not been taking her prescribed medication to keep her condition under control and has missed over half of her counseling appointments.
Sarah's guardian ad litem may recommend to the court that Sarah have only one visit per week with her children until she shows that she can take her medicine and attend counseling on a regular basis to promote Sarah to make more progress for herself and for the benefit of a healthier relationship with her children. This could very well be against Sarah's outrage and protests.
It is important to understand that in a Rhode Island Divorce proceeding, a Guardian Ad Litem represents the best interests of the person they are appointed to serve. This does not mean they serve at the whim of the client or that they must do what the person they are appointed to represent controls their actions or the position they take.
A lawyer represents the client's interests and follows the client's directions within the reasonable direction of the client.
A guardian ad litem appointed by the court (or ever privately) represents the "best interests" of the person (s) they are appointed for, even if their advice, recommendation or counsel to the court is against the wishes of the person they have been appointed to represent.
Rhode Island Divorce Tip - A Checklist Helps
A Rhode Island Divorce filing has it's own forms and its own procedure. It can help to have all the forms you need. All the forms you need to file your Rhode Island Divorce Action from any of the Family Court Clerk's Offices.
So what are the typical Rhode Island Divorce Forms you'll need?
1. Summons Form (in Duplicate)
2. Complaint Form
3. Nominal Track Notice Form
4. Notice of Automatic Orders
5. Family Court Statement Listing Children of the Marriage (in Duplicate)
6. Family Services Counseling Unit Form
7. Rhode Island Department of Health Report of Divorce Form
8. Family Court Statement of Assets, Liabilities, Income and Expenses (DR-6)
9. Affidavit of Non-Military Service (if the Defendant Does not Appear).
There are other forms that are necessary in your checklist depending upon the length of the process. Hopefully your divorce process will be short. Let's assume for the sake of argument that you have a very agreeable divorce that leads up to a 10 minute Nominal Hearing where everything is agreed to and is just formally placed upon the record of the court. In that instance your checklist expands as follows:
10. You must prepare an Interlocutory Decision Pending Entry of Final Judgment that must be checked by one of the clerks of court for the vital case information and then ordered (signed) by the Judge and Entered by the Clerk. This is the temporary order of the court that governs the parties before the entry of the Final Judgment of Divorce and should mirror what the judge orders at your nominal hearing.
11. After the expiration of the 91 day waiting period by statute the Judge may then sign a Final Judgment of Divorce which again is checked by the clerk, ordered by the judge and then entered by the clerk to finalize your divorce. The final judgment would, with minor exceptions, mirror the temporary order.
Keep in mind that this is just a basic checklist and details change with each case. Most assuredly Paragraphs #10 and #11 pose the greatest challenge to those people who are representing themselves as well as attorneys who are not well versed in verbage necessary to protect their clients, to include on the record, and insure are in the temporary order and final decree.
So what are the typical Rhode Island Divorce Forms you'll need?
1. Summons Form (in Duplicate)
2. Complaint Form
3. Nominal Track Notice Form
4. Notice of Automatic Orders
5. Family Court Statement Listing Children of the Marriage (in Duplicate)
6. Family Services Counseling Unit Form
7. Rhode Island Department of Health Report of Divorce Form
8. Family Court Statement of Assets, Liabilities, Income and Expenses (DR-6)
9. Affidavit of Non-Military Service (if the Defendant Does not Appear).
There are other forms that are necessary in your checklist depending upon the length of the process. Hopefully your divorce process will be short. Let's assume for the sake of argument that you have a very agreeable divorce that leads up to a 10 minute Nominal Hearing where everything is agreed to and is just formally placed upon the record of the court. In that instance your checklist expands as follows:
10. You must prepare an Interlocutory Decision Pending Entry of Final Judgment that must be checked by one of the clerks of court for the vital case information and then ordered (signed) by the Judge and Entered by the Clerk. This is the temporary order of the court that governs the parties before the entry of the Final Judgment of Divorce and should mirror what the judge orders at your nominal hearing.
11. After the expiration of the 91 day waiting period by statute the Judge may then sign a Final Judgment of Divorce which again is checked by the clerk, ordered by the judge and then entered by the clerk to finalize your divorce. The final judgment would, with minor exceptions, mirror the temporary order.
Keep in mind that this is just a basic checklist and details change with each case. Most assuredly Paragraphs #10 and #11 pose the greatest challenge to those people who are representing themselves as well as attorneys who are not well versed in verbage necessary to protect their clients, to include on the record, and insure are in the temporary order and final decree.
Tuesday, July 24, 2007
Husbands And Wives Should Have Separate Wills
When couple create a will, they think that creating a single document for the family is the correct thing to do. However, many legal experts are of the opinion that husbands and wives should, in fact, make individual wills.
When a husband and wife make a single will it is called a Combine Will. If one spouse dies, the will has to be submitted in the probate court. When this happens, the information contained in the will can be made available to the public. This can create privacy issues for the family.
Furthermore, if the surviving spouse dies while the will is in the probate court, it can cause bigger headaches for the family. The family then has to get a copy of the original Combined Will and file it in the probate court for the second spouse who passed away. This can be even more problematic if the second spouse has moved his / her home to a jurisdiction which is different from where the first spouse’s will is being probated.
Taking this scenario into consideration, it makes more sense for a husband and wife to have separate Last Will and Testament. This does not mean that the wills have to written differently. The two wills can be mirrors of each other which can stipulate that the first spouse to pass away would leave his / her property and assets to the surviving spouse and after that the property and assets would pass on to the children.
When a husband and wife make a single will it is called a Combine Will. If one spouse dies, the will has to be submitted in the probate court. When this happens, the information contained in the will can be made available to the public. This can create privacy issues for the family.
Furthermore, if the surviving spouse dies while the will is in the probate court, it can cause bigger headaches for the family. The family then has to get a copy of the original Combined Will and file it in the probate court for the second spouse who passed away. This can be even more problematic if the second spouse has moved his / her home to a jurisdiction which is different from where the first spouse’s will is being probated.
Taking this scenario into consideration, it makes more sense for a husband and wife to have separate Last Will and Testament. This does not mean that the wills have to written differently. The two wills can be mirrors of each other which can stipulate that the first spouse to pass away would leave his / her property and assets to the surviving spouse and after that the property and assets would pass on to the children.
Car Claim
A car claim can only be requested by a person involved in a car accident, provided that person is not to blame for it. Whoever decides to do it will probably want to obtain the maximum amount of compensation possible, and for that he or she will have to request the services of a competent car accident specialist.
Here's a hint: it's a big mistake to fully trust your insurance company's intentions. If you are aiming for decent compensation, the attorney is priceless. You know why? Because the insurance company will most likely try to minimize the consequences of the accident, with the purpose of giving you as little money as possible. Don't take it personaly, they do this in all cases, no exceptions. But with a lawyer on your side, you are less likely to be fooled, for you are backed up by a person who has probably seen hundreds of cases like yours and knows exactly how much your accident is worth and what to do to get you your money. It is recommended that you only tell the insurance company that an accident took place, nothing more. That's until you hire the lawyer. From that point on, it's him who will carry out the discussions with them.
Who will the car claim be directed against? Probably the other driver. I'm saying this because 9 accidents out of 10 happen because of human error. There are three main types of collisions: rear end collision, side collision and head on collision. Each one is dangerous, and each one can have serious consequences on the health of the persons involved. No excuse is accepted in cases like this, and you surely won't feel sorry about the guilty driver when you ask for compensation. A common consequence for rear end collisions is the whiplash, which can be a pretty nasty injury. It can go undetected for a period of even two years, and can have dramatic effects in time.
Keeping this in mind, the first thing you should do after the accident is to gather evidence while it's still hot. Write down everything you consider important. For example, the other car's licence number, name and adress of the other driver, names and adresses of possible witnesses. This will come in handy later.
If you are lucky you will only suffer some bruises and scratches, and your car will have only a headlight broken. In this case you should probably just start the process of getting your auto accident insurance, because there's no need to get in a long boring case, to hire a lawyer, etc. Although your insurance company will try to award you the smallest compensation possible, the difference between that and the real compensation you deserve is too small to be taken into consideration.
Nevertheless, if the accident is a serious one, your car claim would better be requested with a lawyer on your side. It can take quite long, probably a few months. This is the time your lawyer needs to gather as much evidence as he can (and here's where you come in with the precious notebook you wrote on after the accident). Then he has to prepare the statements for the insurance company, make appointments for medical visits on your behalf, etc. How much you can get is an estimation that your attorney will probably be able to tell you right from the beginning, and it's a sum that depends, of course, on the gravity of your losses.
Usually, in such cases of personal injuries, lawyers work on a no win no fee basis, which basically means that they get their financial reward for representing you only if they win the case. This should also be explained from the start, along with all other things related to this type of arrangement.
In spite of the constant improvement of car safety systems, it seems like accidents are rapidly growing in numbers around the globe. It is estimated that by the year 2020, road accident deaths will be the number one in a top of preventable deaths. There's no wonder that there is a big number of specialists who handle all types of personal injury compensation cases, and those especially related to road accidents in particular.
Here's a hint: it's a big mistake to fully trust your insurance company's intentions. If you are aiming for decent compensation, the attorney is priceless. You know why? Because the insurance company will most likely try to minimize the consequences of the accident, with the purpose of giving you as little money as possible. Don't take it personaly, they do this in all cases, no exceptions. But with a lawyer on your side, you are less likely to be fooled, for you are backed up by a person who has probably seen hundreds of cases like yours and knows exactly how much your accident is worth and what to do to get you your money. It is recommended that you only tell the insurance company that an accident took place, nothing more. That's until you hire the lawyer. From that point on, it's him who will carry out the discussions with them.
Who will the car claim be directed against? Probably the other driver. I'm saying this because 9 accidents out of 10 happen because of human error. There are three main types of collisions: rear end collision, side collision and head on collision. Each one is dangerous, and each one can have serious consequences on the health of the persons involved. No excuse is accepted in cases like this, and you surely won't feel sorry about the guilty driver when you ask for compensation. A common consequence for rear end collisions is the whiplash, which can be a pretty nasty injury. It can go undetected for a period of even two years, and can have dramatic effects in time.
Keeping this in mind, the first thing you should do after the accident is to gather evidence while it's still hot. Write down everything you consider important. For example, the other car's licence number, name and adress of the other driver, names and adresses of possible witnesses. This will come in handy later.
If you are lucky you will only suffer some bruises and scratches, and your car will have only a headlight broken. In this case you should probably just start the process of getting your auto accident insurance, because there's no need to get in a long boring case, to hire a lawyer, etc. Although your insurance company will try to award you the smallest compensation possible, the difference between that and the real compensation you deserve is too small to be taken into consideration.
Nevertheless, if the accident is a serious one, your car claim would better be requested with a lawyer on your side. It can take quite long, probably a few months. This is the time your lawyer needs to gather as much evidence as he can (and here's where you come in with the precious notebook you wrote on after the accident). Then he has to prepare the statements for the insurance company, make appointments for medical visits on your behalf, etc. How much you can get is an estimation that your attorney will probably be able to tell you right from the beginning, and it's a sum that depends, of course, on the gravity of your losses.
Usually, in such cases of personal injuries, lawyers work on a no win no fee basis, which basically means that they get their financial reward for representing you only if they win the case. This should also be explained from the start, along with all other things related to this type of arrangement.
In spite of the constant improvement of car safety systems, it seems like accidents are rapidly growing in numbers around the globe. It is estimated that by the year 2020, road accident deaths will be the number one in a top of preventable deaths. There's no wonder that there is a big number of specialists who handle all types of personal injury compensation cases, and those especially related to road accidents in particular.
Legal Advice Against Cell Phone Companies For Low Service
According to a study conducted by the Better Business Bureau, around 30,483 complaints were filed by customers against different cell phone companies. The two most common problems that every cell phone customer experiences are low service and unnecessary charges that are levied from the cell phone company. Apart from these, certain other complaints include inadequate customer service desk, improper billing and fraudulent contract terms.
Any cell phone company does not guarantee quality of service or availability of network. This is clearly stated in the terms and conditions of the contract that is signed before availing the service. Apart from this, the existing agreements also prevent the customer from making any claims against the cell phone company for improper service. However, in cases of low service a consumer is liable to break the contract by paying a nominal fee to the cell phone company. But, a continued low service has resulted in customers filing lawsuits against the companies.
According to Lois Aronstein, who is the AARP New York State Director, the New York State is proposing an improved Cell Phone Consumer Protection Act for the purpose of protecting customers from the woes of cell phone companies. According to this legislation, cell phone companies would have to disclose all the fees, surcharges and taxes levied on the customer. The new legislation would enable the customer to cancel his contract without paying any penalty. However, the cancellation must be done within fifteen days of receiving the first bill. Apart from these, the cell phone company must provide the customers with details regarding their network coverage and cell phone’s E-911 capabilities.
Any cell phone company does not guarantee quality of service or availability of network. This is clearly stated in the terms and conditions of the contract that is signed before availing the service. Apart from this, the existing agreements also prevent the customer from making any claims against the cell phone company for improper service. However, in cases of low service a consumer is liable to break the contract by paying a nominal fee to the cell phone company. But, a continued low service has resulted in customers filing lawsuits against the companies.
According to Lois Aronstein, who is the AARP New York State Director, the New York State is proposing an improved Cell Phone Consumer Protection Act for the purpose of protecting customers from the woes of cell phone companies. According to this legislation, cell phone companies would have to disclose all the fees, surcharges and taxes levied on the customer. The new legislation would enable the customer to cancel his contract without paying any penalty. However, the cancellation must be done within fifteen days of receiving the first bill. Apart from these, the cell phone company must provide the customers with details regarding their network coverage and cell phone’s E-911 capabilities.
California Prenuptial Agreements
Aren’t Prenups unromantic and indicate a lack of trust?
Even though one in ten couples now enter into some kind of prenuptial or premarital agreement (“prenups”) many couples are reluctant to enter sign a prenup because it seems unromantic and indicates a lack of trust.
There are several reasons why this reluctance is misplaced.
First, if not you do not sign a prenup, your marriage will be governed by a complex set of laws. In California they are the California Family Code and Probate Code. Either way your marriage will be governed by a complex set of rules. The choice is between a set of rules negotiated by you or imposed by the State.
Second, from a historical perspective, premarital contracts lie at the root of the institution of marriage. For two thousand years, Jewish marriages have been preceded by a prenuptial agreement called the “Ketubah.”
Third, far from undermining trust, the process of drafting and negotiating a prenuptial agreement may, in fact, strengthen your relationship. The process requires a full disclosure of your financial situation and involves an open and honest discussion of about how you will handle your money and plan your future. One psychiatrist states: “openly agreed upon rules are likely to be a better foundation for growth than are those latent rules that surface and prove to be either disagreeable or downright outrageous (‘What do you mean, you don’t do dishes?’)”
Fifth, prenups prepare you for marriage. Sooner or later you are going to have to talk about money issues. Why not do it now and save heartache and trouble later on? After your honeymoon is over you will soon find out how earning and spending money is an integral part of your marriage. The Catholic Church recognized this fact and incorporates a prenuptial dialogue in a marital preparation process called “Pre-Cana.”
Sixth, prenups can be drafted to protect both spouses not just a wealthy spouse.
Seventh, it just makes sense. No-one plans on their house burning down, ending up in a nursing home or suffering a disability but they still take out insurance. As Dr. Ruth says: “We live in such a litigious society. Nobody knows what life brings. Hopefully we will never need it. What’s the big deal? Let’s do it and give it to the attorneys…for the new millennium, a prenup is part of a mature relationship, based on love, mutual trust and optimism.”
Do I need a California Prenup even if I don’t plan to live here?
Even if you do not live here when you divorce, California can still assert jurisdiction over you for support, attorneys' fees, and the division of property. California also applies the doctrine of divisible divorce which means that each aspect of a divorce is treated differently for jurisdictional purposes. For example, a California court could assert jurisdiction over custody and visitation matters but relinquish property matters to the Court of another state. Consider the billion dollar divorce of David and Susanne Sapperstein. Vanity Fair reported that David Sapperstein left was his wife of 23 years for their Swedish nanny. Suzanne lived in Los Angeles with their youngest child in what is reported to be the most expensive mansion in Los Angeles. During a trip to France on the couple’s gulf stream jet, David said they had to stop over in Houston, Texas where he had business. Once they hit the ground, his attorneys served Suzanne with divorce papers. A few days later she filed divorce papers in California. Why? California has more liberal rules on alimony (spousal support) than Texas which ends after three years.
Even though a California prenup is designed to apply only if you are divorced in California, it may apply if you are divorced in another state. That result is not guaranteed but there is a good chance that it will be. If you want to make sure that your California prenup is enforced in other states you need to retain counsel in that state to review the prenup.
There is an even greater risk that a California prenup will not be enforced in a foreign country. Many countries such as Denmark, France and Germany recognize prenups but have different marital laws and specific procedures for the execution and registration of prenups. England and Australia do not recognize prenups but some courts have taken them into account when dividing property. If you plan on living in another country you should consult with a family law attorney in that jurisdiction.
Sex and Prenups
California prenups cannot regulate child custody or child support. They cannot regulate your behavior and they cannot punish a spouse for being unfaithful. In one highly publicized prenup, a New Mexico couple agreed that they should have sex at least five times a week, pay for everything in cash and not leave clothes strewn on the floor. Those provisions wouldn’t be enforceable in California. It should be noted that the couple are reportedly still happily married.
Religion and Prenups
Prenups cannot regulate the practice of religion. However, in one important area prenups can provide a spouse with an important religious protection. Under traditional Jewish law, if a husband does not grant his wife a religious divorce or “get,” the woman is considered an “agunah” and cannot get re-married. California does not have a “get” law like New York so in order to protect a Jewish woman’s right to a “get” it is suggested that a prenup contains a penalty clause that the husband pays a fine for every day he does not grant a “get.”
Prenups and Community Property
In the absence of a prenup, California community property law provides that all community property (any property acquired during the marriage while the parties are living in California that is not a gift or an inheritance) is divided equally upon divorce. It usually does not matter if the property is in one party’s name – if it is acquired during marriage, with some exceptions, it is community property. Property owned before marriage is separate property and cannot be divided by a court and belongs to that party. However, efforts to improve, enhance or contribute to separate property can create a community property interest in that separate property. That is where a prenup comes into play. A prenup can provide that your spouse never acquires a community interest in your separate property.
If you do not have a prenup, the determination of what is separate and what is community property often requires the use of forensic accountants. In high-asset cases, the accounting and legal fees can run into the hundreds of thousands, or even millions, of dollars. Furthermore, in determining whether a business owned before marriage has any community interest, the property must be valued both at the time of marriage and at the time of separation, and sometimes again at the time of the divorce trial which can be years after filing for divorce. Similar calcula¬tions are made for real estate and intellectual property. Furthermore, earnings are commu¬nity property. If you married without a prenup and earned $50,000,000 during your marriage, that entire sum would be community property. That means your spouse would own one-half of that property and anything purchased with that property.
Furthermore, if you lost any of that money in a bad investment or mismanaged your assets, your spouse may have an action against you for a breach of fiduciary duty. And if you reinvested those earnings in a separate property business or any other property, your spouse could request that you reimburse the community for the money spent. In a long term marriage that tracing may be impossible to do and sometimes the person claiming a separate property interest forfeits their claim.
Under California law, the proceeds of loans are community property under certain circumstances. If an individual owns compa¬nies and uses financing or factoring to finance a business, the loan proceeds can be so commingled in the business that the owner can end up losing his separate property interest. Also if you refinance your real estate, you may be contributing community property to your separate property asset.
A prenup can regulate all aspects of how separate and community property assets and liabilities are treated. In the case of a financially independent couple with their own resources a prenup can provide that all income, assets and debts acquired or incurred remain separate property. Alternatively, in lieu of a community property distribution, a wealthier spouse might agree to pay the other spouse a lump sum based on the length of the marriage. On the other hand, a couple might agree that all property accumulated during the marriage remain community property but that certain property brought into the marriage such as family businesses or funds always remains separate property. Since each situation is different a prenup should be carefully tailored to meet the circumstances of each couple.
Spousal Support
California law allows you to waive or limit spousal support as long as the provision is not deemed unconscionable. Unfortunately, as yet there is no case law defining the word "unconscionable." If there is a significant disparity in the amount of wealth between the parties, instead of waiving spousal support, the prenup may place limits on the amount and duration of support. The amount and duration can be based on a formula which takes account of the income of the parties and the duration of the marriage.
Do it right
When Steven Spielberg and actress Amy Irving divorced after four years, she argued that their prenup which was written on the back of a napkin was not enforceable because she was not represented by an attorney. The Judge agreed and she received a $100 million settlement. When Spielberg married Kate Kapshaw, both were represented by attorneys when they signed a prenup.
Even though one in ten couples now enter into some kind of prenuptial or premarital agreement (“prenups”) many couples are reluctant to enter sign a prenup because it seems unromantic and indicates a lack of trust.
There are several reasons why this reluctance is misplaced.
First, if not you do not sign a prenup, your marriage will be governed by a complex set of laws. In California they are the California Family Code and Probate Code. Either way your marriage will be governed by a complex set of rules. The choice is between a set of rules negotiated by you or imposed by the State.
Second, from a historical perspective, premarital contracts lie at the root of the institution of marriage. For two thousand years, Jewish marriages have been preceded by a prenuptial agreement called the “Ketubah.”
Third, far from undermining trust, the process of drafting and negotiating a prenuptial agreement may, in fact, strengthen your relationship. The process requires a full disclosure of your financial situation and involves an open and honest discussion of about how you will handle your money and plan your future. One psychiatrist states: “openly agreed upon rules are likely to be a better foundation for growth than are those latent rules that surface and prove to be either disagreeable or downright outrageous (‘What do you mean, you don’t do dishes?’)”
Fifth, prenups prepare you for marriage. Sooner or later you are going to have to talk about money issues. Why not do it now and save heartache and trouble later on? After your honeymoon is over you will soon find out how earning and spending money is an integral part of your marriage. The Catholic Church recognized this fact and incorporates a prenuptial dialogue in a marital preparation process called “Pre-Cana.”
Sixth, prenups can be drafted to protect both spouses not just a wealthy spouse.
Seventh, it just makes sense. No-one plans on their house burning down, ending up in a nursing home or suffering a disability but they still take out insurance. As Dr. Ruth says: “We live in such a litigious society. Nobody knows what life brings. Hopefully we will never need it. What’s the big deal? Let’s do it and give it to the attorneys…for the new millennium, a prenup is part of a mature relationship, based on love, mutual trust and optimism.”
Do I need a California Prenup even if I don’t plan to live here?
Even if you do not live here when you divorce, California can still assert jurisdiction over you for support, attorneys' fees, and the division of property. California also applies the doctrine of divisible divorce which means that each aspect of a divorce is treated differently for jurisdictional purposes. For example, a California court could assert jurisdiction over custody and visitation matters but relinquish property matters to the Court of another state. Consider the billion dollar divorce of David and Susanne Sapperstein. Vanity Fair reported that David Sapperstein left was his wife of 23 years for their Swedish nanny. Suzanne lived in Los Angeles with their youngest child in what is reported to be the most expensive mansion in Los Angeles. During a trip to France on the couple’s gulf stream jet, David said they had to stop over in Houston, Texas where he had business. Once they hit the ground, his attorneys served Suzanne with divorce papers. A few days later she filed divorce papers in California. Why? California has more liberal rules on alimony (spousal support) than Texas which ends after three years.
Even though a California prenup is designed to apply only if you are divorced in California, it may apply if you are divorced in another state. That result is not guaranteed but there is a good chance that it will be. If you want to make sure that your California prenup is enforced in other states you need to retain counsel in that state to review the prenup.
There is an even greater risk that a California prenup will not be enforced in a foreign country. Many countries such as Denmark, France and Germany recognize prenups but have different marital laws and specific procedures for the execution and registration of prenups. England and Australia do not recognize prenups but some courts have taken them into account when dividing property. If you plan on living in another country you should consult with a family law attorney in that jurisdiction.
Sex and Prenups
California prenups cannot regulate child custody or child support. They cannot regulate your behavior and they cannot punish a spouse for being unfaithful. In one highly publicized prenup, a New Mexico couple agreed that they should have sex at least five times a week, pay for everything in cash and not leave clothes strewn on the floor. Those provisions wouldn’t be enforceable in California. It should be noted that the couple are reportedly still happily married.
Religion and Prenups
Prenups cannot regulate the practice of religion. However, in one important area prenups can provide a spouse with an important religious protection. Under traditional Jewish law, if a husband does not grant his wife a religious divorce or “get,” the woman is considered an “agunah” and cannot get re-married. California does not have a “get” law like New York so in order to protect a Jewish woman’s right to a “get” it is suggested that a prenup contains a penalty clause that the husband pays a fine for every day he does not grant a “get.”
Prenups and Community Property
In the absence of a prenup, California community property law provides that all community property (any property acquired during the marriage while the parties are living in California that is not a gift or an inheritance) is divided equally upon divorce. It usually does not matter if the property is in one party’s name – if it is acquired during marriage, with some exceptions, it is community property. Property owned before marriage is separate property and cannot be divided by a court and belongs to that party. However, efforts to improve, enhance or contribute to separate property can create a community property interest in that separate property. That is where a prenup comes into play. A prenup can provide that your spouse never acquires a community interest in your separate property.
If you do not have a prenup, the determination of what is separate and what is community property often requires the use of forensic accountants. In high-asset cases, the accounting and legal fees can run into the hundreds of thousands, or even millions, of dollars. Furthermore, in determining whether a business owned before marriage has any community interest, the property must be valued both at the time of marriage and at the time of separation, and sometimes again at the time of the divorce trial which can be years after filing for divorce. Similar calcula¬tions are made for real estate and intellectual property. Furthermore, earnings are commu¬nity property. If you married without a prenup and earned $50,000,000 during your marriage, that entire sum would be community property. That means your spouse would own one-half of that property and anything purchased with that property.
Furthermore, if you lost any of that money in a bad investment or mismanaged your assets, your spouse may have an action against you for a breach of fiduciary duty. And if you reinvested those earnings in a separate property business or any other property, your spouse could request that you reimburse the community for the money spent. In a long term marriage that tracing may be impossible to do and sometimes the person claiming a separate property interest forfeits their claim.
Under California law, the proceeds of loans are community property under certain circumstances. If an individual owns compa¬nies and uses financing or factoring to finance a business, the loan proceeds can be so commingled in the business that the owner can end up losing his separate property interest. Also if you refinance your real estate, you may be contributing community property to your separate property asset.
A prenup can regulate all aspects of how separate and community property assets and liabilities are treated. In the case of a financially independent couple with their own resources a prenup can provide that all income, assets and debts acquired or incurred remain separate property. Alternatively, in lieu of a community property distribution, a wealthier spouse might agree to pay the other spouse a lump sum based on the length of the marriage. On the other hand, a couple might agree that all property accumulated during the marriage remain community property but that certain property brought into the marriage such as family businesses or funds always remains separate property. Since each situation is different a prenup should be carefully tailored to meet the circumstances of each couple.
Spousal Support
California law allows you to waive or limit spousal support as long as the provision is not deemed unconscionable. Unfortunately, as yet there is no case law defining the word "unconscionable." If there is a significant disparity in the amount of wealth between the parties, instead of waiving spousal support, the prenup may place limits on the amount and duration of support. The amount and duration can be based on a formula which takes account of the income of the parties and the duration of the marriage.
Do it right
When Steven Spielberg and actress Amy Irving divorced after four years, she argued that their prenup which was written on the back of a napkin was not enforceable because she was not represented by an attorney. The Judge agreed and she received a $100 million settlement. When Spielberg married Kate Kapshaw, both were represented by attorneys when they signed a prenup.
DUI Lawyers
DUI lawyers are some of the most controversial lawyers in criminal defense today. The general public is quick to judge them on preconceived notions that the media has presented on recent DUI cases defended by some of the best DUI lawyers in the country.
Why DUI Lawyers Are Important.
They're important because they prevent the U.S. from becoming what’s referred to as a ‘police state.’ What that means is that DUI lawyers represent the constitution and force law enforcement to follow the rules and regulations that they are required to abide by. Without these checks and balances our country would be NO different from any other country.
What most people don’t understand is that they protect ALL of our rights by defending those accused of a drunk driving or DUI related offense. How, you ask? If it weren’t for these same DUI lawyers properly defending their clients our law enforcement and judicial system would not take the time to ensure that all of our rights as citizens were being granted.
What rights you ask? Think about it… If a police officer stopped you in your motor vehicle and honestly (in his own mind) believed that you were drunk, would he take the time to carry out all the scientific and evidentiary tests before arresting you? Or would he simply arrest you and bring you ‘downtown’ due to his own belief?
By the mere fact that the officer knows there are a slew of aggressive DUI lawyers anxious to methodically poke holes in his arrest forces him to provide the accused with ALL of his/her rights and ensure that the person his treated fairly according to law.
Think about it this way… they are protecting your freedom; whether or not you’ve ever driven drunk. They fight for the constitution and all of our freedoms.
Why DUI Lawyers Are Important.
They're important because they prevent the U.S. from becoming what’s referred to as a ‘police state.’ What that means is that DUI lawyers represent the constitution and force law enforcement to follow the rules and regulations that they are required to abide by. Without these checks and balances our country would be NO different from any other country.
What most people don’t understand is that they protect ALL of our rights by defending those accused of a drunk driving or DUI related offense. How, you ask? If it weren’t for these same DUI lawyers properly defending their clients our law enforcement and judicial system would not take the time to ensure that all of our rights as citizens were being granted.
What rights you ask? Think about it… If a police officer stopped you in your motor vehicle and honestly (in his own mind) believed that you were drunk, would he take the time to carry out all the scientific and evidentiary tests before arresting you? Or would he simply arrest you and bring you ‘downtown’ due to his own belief?
By the mere fact that the officer knows there are a slew of aggressive DUI lawyers anxious to methodically poke holes in his arrest forces him to provide the accused with ALL of his/her rights and ensure that the person his treated fairly according to law.
Think about it this way… they are protecting your freedom; whether or not you’ve ever driven drunk. They fight for the constitution and all of our freedoms.
Child Custody
When a couple files for divorce, the court decides the guardian of the child who is under 18 years of age. The decision regarding child custody is often a sensitive issue and need to be taken with a lot of care. In most cases, the custody is handed over to one of the parents but in case both the parents are not in a position to look after the child, the custody goes to a relative or orphanage.
For a parent, the most precious thing is his/her child. A parent would seek help of the best attorney to be with his/her child forever. An expert attorney can guide you the best in protecting your rights.
An attorney has a vast experience in dealing with child custody cases. A number of intricacies are involved in such cases that require expert handling that an attorney can provide.
Under the Federal Law, there are five types of child custody:
1. Legal Custody: Under the legal custody, the parent has the right to make decisions regarding the schooling, medical and dental care of the child. In many states, the courts award joint legal custody to the parents. Under the joint legal custody, the decision-making is shared between the parents. Under a joint legal custody, in case one parent takes decision regarding the child without the consent of the other, the other parent might ask the judge to enforce the original custody agreement.
2. Physical custody: It is the right of a parent lives with the child. In some states, there are arrangements where the child spends approximately half the time in each parent’s home. The latter arrangement is considered only when there is amiable relationship between the parents.
3. Sole Custody: Under Sole Custody, the custodial parent has physical custody and legal custody of a child, and that the non-custodial parent has only visitation rights.
4. Joint Custody: Parents who live separately can opt for a joint custody, i.e., if they agree.
5. Bird’s nest custody: Bird's nest custody is a joint custody arrangement where the children remain in the family home and the parents take turns moving in and out.
Factors in Determining Custody
While deciding for a child’s custody, the court gives maximum importance to the child’s best interests. The factors on which the decision regarding a child’s custody is taken are:
1. The child’s age, gender, mental and physical health
2. The parent’s mental and physical condition
3. The lifestyle and other social factors of the parents
4. The emotional bond between the child and the parent
5. The parent’s ability to guide the child
6. The parent’s ability to provide the child with food, shelter, clothing and medical care
7. The child’s established living style
8. The quality of the school attended by the child
9. The child’s preference, i.e., if the child is above a certain age (usually 12)
10. The ability and willingness of the parent to foster healthy communication and contact between the child and the other parent.
11. The willingness of a new spouse to accept the child
12. Physical or mental handicaps that affect the child's well-being
For a parent, the most precious thing is his/her child. A parent would seek help of the best attorney to be with his/her child forever. An expert attorney can guide you the best in protecting your rights.
An attorney has a vast experience in dealing with child custody cases. A number of intricacies are involved in such cases that require expert handling that an attorney can provide.
Under the Federal Law, there are five types of child custody:
1. Legal Custody: Under the legal custody, the parent has the right to make decisions regarding the schooling, medical and dental care of the child. In many states, the courts award joint legal custody to the parents. Under the joint legal custody, the decision-making is shared between the parents. Under a joint legal custody, in case one parent takes decision regarding the child without the consent of the other, the other parent might ask the judge to enforce the original custody agreement.
2. Physical custody: It is the right of a parent lives with the child. In some states, there are arrangements where the child spends approximately half the time in each parent’s home. The latter arrangement is considered only when there is amiable relationship between the parents.
3. Sole Custody: Under Sole Custody, the custodial parent has physical custody and legal custody of a child, and that the non-custodial parent has only visitation rights.
4. Joint Custody: Parents who live separately can opt for a joint custody, i.e., if they agree.
5. Bird’s nest custody: Bird's nest custody is a joint custody arrangement where the children remain in the family home and the parents take turns moving in and out.
Factors in Determining Custody
While deciding for a child’s custody, the court gives maximum importance to the child’s best interests. The factors on which the decision regarding a child’s custody is taken are:
1. The child’s age, gender, mental and physical health
2. The parent’s mental and physical condition
3. The lifestyle and other social factors of the parents
4. The emotional bond between the child and the parent
5. The parent’s ability to guide the child
6. The parent’s ability to provide the child with food, shelter, clothing and medical care
7. The child’s established living style
8. The quality of the school attended by the child
9. The child’s preference, i.e., if the child is above a certain age (usually 12)
10. The ability and willingness of the parent to foster healthy communication and contact between the child and the other parent.
11. The willingness of a new spouse to accept the child
12. Physical or mental handicaps that affect the child's well-being
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