As a practicing Boise Divorce Attorney it is important to keep up on changes in the law in relation to Divorce, Child Custody and Child Support issues in relation to military divorce.
For both active and non-active members of the military, the military pension is a good example of repeated change in divorce law. The law has gone back and forth on this issue. At certain times the military pension was regarded as a non- community property asset. That changed giving military spouses a community property interest in the other party's pension.
In 1982 the Uniformed Services Former Spouses' Protection Act limiting the amount of the member’s retired pay which can be paid to a former spouse to 50% of the member’s disposable retired pay (gross retired pay less authorized deductions. It also required that the parties must have been married for at least 10 years while the member performed at least 10 years of active duty service before a division of retired pay is enforceable and it specified how an award of military retired pay must be expressed. In addition it required that the former spouse actually take the step to actually submit a copy of the divorce decree and order for division of military retirement within 90 days in order for the request to be processed.
As a Boise Divorce Attorney who has done military divorces, I have personally experienced the various difference between a military and a civilian divorce. A few examples of the difference are: An active member of the military must be served with the divorce complaint personally. Also, an active member of the military has the option of asking, and it is in the Idaho court's discretion to grant it, that the proceedings be delayed for the entire term of the military personnel's duty and for up to 60 days thereafter.
As a Boise Divorce Attorney, I have seen the differences in child custody and child support as they relate to military divorce as well. Child support cannot exceed 60% of the service person's pay and allowances. The same goes for spousal support. As far as child custody in a military divorce, the courts must look heavily at the consistency and stability element of child custody determination because of the possibility of the military move. This often translates into longer summer visitation rather than frequent weekly visitation depending upon where the non-custodial parent resides.
If you have military divorce issues it is important to find a Boise Divorce attorney who knows the ins and outs of military divorce. For more information on divorce, please visit www.lawboiseid.com and www.divorceboiseid.com where you can find detailed information on divorce as well as contact information.
Thursday, October 28, 2010
Tuesday, October 26, 2010
Boise Divorce Attorney Discusses Child Custody in Ada v Canyon County
As a Boise Divorce Attorney I have seen the law concerning child custody change over the years and in various venues.
It used to be that in Boise and Ada County judges would use home studies to determine child custody issues. The fitness of the respective parties was determined by the use of this tool. The divorce lawyers would get together and choose one of a handful of psychologists who would then put the parties through a series of tests and questions and then make a recommendation as to who should have primary physical child custody and what type of visitation should be allowed.
I have been a Boise Divorce Attorney for 17 years and I can't tell you how that process often made me cringe. You just never really knew what the result would be. Well, in Ada County the judges have decided that that method of determination isn't exactly full-proof and have opted to make child custody determinations differently.
Child custody issues in Canyon County, however, are still highly influenced by the use of home studies. The judges there still believe that these tools are a useful and effective way to determine who should have primary physical custody.
Some of the tests that these psychologists use in influencing judicial decisions concerning child custody issues are personality and IQ tests. They also look at the home and relationships of the parents who are in the middle of divorce. These evaluations are really not hugely different from the criteria that divorce judges in Ada County use to determine child custody. The benefit of the home study is that there is a trained individual who evaluates relevant issues through actually investigation rather than relying on a judge to wade through the evidence provided through the divorce clients or their attorneys.
For more information concerning and child custody in Boise and the surrounding areas visit lawboiseid.com and Kershisnik Law's new growing website, divorceboiseid.com dedicated to divorce, child custody and other family law issues in Idaho
It used to be that in Boise and Ada County judges would use home studies to determine child custody issues. The fitness of the respective parties was determined by the use of this tool. The divorce lawyers would get together and choose one of a handful of psychologists who would then put the parties through a series of tests and questions and then make a recommendation as to who should have primary physical child custody and what type of visitation should be allowed.
I have been a Boise Divorce Attorney for 17 years and I can't tell you how that process often made me cringe. You just never really knew what the result would be. Well, in Ada County the judges have decided that that method of determination isn't exactly full-proof and have opted to make child custody determinations differently.
Child custody issues in Canyon County, however, are still highly influenced by the use of home studies. The judges there still believe that these tools are a useful and effective way to determine who should have primary physical custody.
Some of the tests that these psychologists use in influencing judicial decisions concerning child custody issues are personality and IQ tests. They also look at the home and relationships of the parents who are in the middle of divorce. These evaluations are really not hugely different from the criteria that divorce judges in Ada County use to determine child custody. The benefit of the home study is that there is a trained individual who evaluates relevant issues through actually investigation rather than relying on a judge to wade through the evidence provided through the divorce clients or their attorneys.
For more information concerning and child custody in Boise and the surrounding areas visit lawboiseid.com and Kershisnik Law's new growing website, divorceboiseid.com dedicated to divorce, child custody and other family law issues in Idaho
Thursday, October 21, 2010
Idaho Criminal Attorney Discusses DUI
Years and years ago just after prohibition had been repealed a new product came out onto the market. It was known as Geritol. Geritol promised a new vibrancy for beleaguered housewives and those frazzled business men; more energy, more stamina, more gusto. While some called it "snake oil", Geritol was so popular because those people who used it knew it worked. Well it turns out that the original Geritol did work. It worked so well because it contained alcohol so, yes indeed, those aggravated souls were more relaxed and depending upon how much they used, they lost their inhibitions. They thought it was harmless. They thought it was medicinal.
As an Idaho Criminal Attorney I can tell you that in criminal law cases today we are witnessing many similarities to Geritol use which is rapidly turning into everyone's nightmare; DUI. The Mojito or the glass of red wine is the modern day Geritol. We relax after work with our beverage of choice, which is fine, but many people think that that one or two Mojitos or one or two glasses of wine aren't enough to impair their driving.
Then it happens, you return from an evening of Mojitos and relaxing company with friends and you get pulled over. Now what?
DUI in Idaho carries the following penalties for a first time offense:
- Up to a $1000 fine
- Anywhere from 2 days to 6 months in jail
- up to a 180 day license suspension with 30 days of that being absolute and
with the remaining suspension being restricted
- An alcohol evaluation
- Victim's panel
- Up to 2 years probation
DUI is a serious offense. There are actually two license suspensions involved with a DUI. Your driving privileges will be suspended not only if you are convicted of a DUI (suspended by the court) but also upon your arrest (by the Department of Transportation). You have 7 days from the date of your arrest to request an administrative hearing with the Idaho Department of Transportation if you wish to challenge this license suspension. If you don't do this or if you lose at the hearing your license will be suspended for 90 days. If you are convicted of a DUI you will get an additional 90 day license suspension. In Ada and Canyon Counties the court will allow these suspensions to run concurrently. You can also petition the court for a restricted license after the first 30 days of your license suspension.
As an Idaho Criminal Attorney I see people miss this deadline all of the time. While you may not prevail (usually because of the extent of the evidence against you), why would you not want to take the option to challenge your license suspension?
Just remember, DUI can happen to anyone. Just like the Geritol took people by surprise because of its alcohol content, medicinal Mojito drinkers could get the same surprise.
For more information about DUI and Criminal Law please visit us on the web at www.lawboiseid.com
As an Idaho Criminal Attorney I can tell you that in criminal law cases today we are witnessing many similarities to Geritol use which is rapidly turning into everyone's nightmare; DUI. The Mojito or the glass of red wine is the modern day Geritol. We relax after work with our beverage of choice, which is fine, but many people think that that one or two Mojitos or one or two glasses of wine aren't enough to impair their driving.
Then it happens, you return from an evening of Mojitos and relaxing company with friends and you get pulled over. Now what?
DUI in Idaho carries the following penalties for a first time offense:
- Up to a $1000 fine
- Anywhere from 2 days to 6 months in jail
- up to a 180 day license suspension with 30 days of that being absolute and
with the remaining suspension being restricted
- An alcohol evaluation
- Victim's panel
- Up to 2 years probation
DUI is a serious offense. There are actually two license suspensions involved with a DUI. Your driving privileges will be suspended not only if you are convicted of a DUI (suspended by the court) but also upon your arrest (by the Department of Transportation). You have 7 days from the date of your arrest to request an administrative hearing with the Idaho Department of Transportation if you wish to challenge this license suspension. If you don't do this or if you lose at the hearing your license will be suspended for 90 days. If you are convicted of a DUI you will get an additional 90 day license suspension. In Ada and Canyon Counties the court will allow these suspensions to run concurrently. You can also petition the court for a restricted license after the first 30 days of your license suspension.
As an Idaho Criminal Attorney I see people miss this deadline all of the time. While you may not prevail (usually because of the extent of the evidence against you), why would you not want to take the option to challenge your license suspension?
Just remember, DUI can happen to anyone. Just like the Geritol took people by surprise because of its alcohol content, medicinal Mojito drinkers could get the same surprise.
For more information about DUI and Criminal Law please visit us on the web at www.lawboiseid.com
Tuesday, October 19, 2010
Boise Divorce Attorney Discusses Co-Habitation and its Effect on Property Division, Child Custody and Child Support
As a Boise Divorce Attorney I have seen the law concerning co-habitation change over the years. It used to be that you could decide to live together and share your property and debt and thereby create a common law marriage. Idaho no longer recognizes common law marriage, except that if you formed a common law marriage before January 1, 1996 your marriage is grandfathered in and you are considered married.
I know many an Idaho Lawyer who has been approached by a client who asks, "So what happens if I began living together after January 1, 1996 and my ex and I had a child together and then we decide to split? Well, first of all the issues of child custody and child support pretty much remain the same, whether you were married or not. Child custody will be determined by the factors outlined in the Idaho Code and child support will be set by the Idaho Child Support Guidelines with mandatory withholding and Idaho employment law implications as discussed in a previous blog.
The real question is what happens to the property and the debt. If you were married the property and debt would follow community property laws, but if you were never married community property laws do no apply. The purchase and ownership of the property will be treated as a contractual relationship. Since you probably did not sign any agreement as to how the property would be split if you split, you have to look at the surrounding circumstances. Has one party paid more than the other, thereby giving them a greater interest in the property? Has one party always paid more or have they done so just recently? Was the property purchased as income property or was it purchased for private use? What kind of funds were used to purchase the property? Did the parties take out a loan? Who signed the loan documents? The issues as to whose property it will become would be the same as if two business partners purchased property together. And, of course, even if you split up, you can remain co-owners of the property and never divide it. However, the most likely thing that will occur if you both have paid and used the property is that one party will buy the other party out.
As far as the debt is concerned, you would look to who is obligated on the note. If both parties are, then both parties will remain until it is paid off or one party buys the other out.
Co-habitation sets up some interesting questions as to property and debt issues when there is no marriage to kick in community property laws. But remember, whenever you have a child, child custody and child support are not affected by the lack of marriage. As a Boise Divorce Attorney I see many people who wish they could use those community property laws because it makes the division of property much easier.
For more information concerning divorce, child custody, child support and Idaho employment law as it relates to child support in Idaho please visit www.lawboiseid.com
I know many an Idaho Lawyer who has been approached by a client who asks, "So what happens if I began living together after January 1, 1996 and my ex and I had a child together and then we decide to split? Well, first of all the issues of child custody and child support pretty much remain the same, whether you were married or not. Child custody will be determined by the factors outlined in the Idaho Code and child support will be set by the Idaho Child Support Guidelines with mandatory withholding and Idaho employment law implications as discussed in a previous blog.
The real question is what happens to the property and the debt. If you were married the property and debt would follow community property laws, but if you were never married community property laws do no apply. The purchase and ownership of the property will be treated as a contractual relationship. Since you probably did not sign any agreement as to how the property would be split if you split, you have to look at the surrounding circumstances. Has one party paid more than the other, thereby giving them a greater interest in the property? Has one party always paid more or have they done so just recently? Was the property purchased as income property or was it purchased for private use? What kind of funds were used to purchase the property? Did the parties take out a loan? Who signed the loan documents? The issues as to whose property it will become would be the same as if two business partners purchased property together. And, of course, even if you split up, you can remain co-owners of the property and never divide it. However, the most likely thing that will occur if you both have paid and used the property is that one party will buy the other party out.
As far as the debt is concerned, you would look to who is obligated on the note. If both parties are, then both parties will remain until it is paid off or one party buys the other out.
Co-habitation sets up some interesting questions as to property and debt issues when there is no marriage to kick in community property laws. But remember, whenever you have a child, child custody and child support are not affected by the lack of marriage. As a Boise Divorce Attorney I see many people who wish they could use those community property laws because it makes the division of property much easier.
For more information concerning divorce, child custody, child support and Idaho employment law as it relates to child support in Idaho please visit www.lawboiseid.com
Thursday, October 14, 2010
Employment Law Issues - Workplace Discrimination and Sex Discrimination Harassment
Workplace discrimination can come in many forms. In today's employment law blog I will be discussing sex discrimination harassment. This type of discrimination is different from sexual harassment. For a sexual harassment suit you must show that there are advances of a sexual nature and that those advances are unwanted. Sex discrimination harassment can include sexual harassment but does not have to in order to file suit.
In Employment Law terms, sex discrimination harassment occurs when a hostile work environment is created. For example, if you are a female and your boss or co-worker regularly makes offensive remarks about your gender, women in general, your particular female characteristics or about organizations that are primarily female organizations so frequently or severe that your place of work becomes noxious, you may have a basis to file a suit. Also, an office policy that applies to both genders can cause discrimination if it has a negative impact on one sex and it is not necessary for the operation of the business. The harassment, however, cannot be isolated or infrequent and cannot be simple teasing.
Of course, sex discrimination harassment does not only protect women. It protects men as well. It also applies whether the harasser is male or female and whether the harassment comes from a supervisor, a co-worker, or even a client of the company.
Employment law remedies for sex discrimination harassment are in place to put the employee back in a position they would have been had the discrimination not occurred. This could be reinstatement, raise or promotion. But it doesn't necessarily stop there. Remedies may also include compensatory or punitive damages. Compensatory damages may be awarded for out of pocket expenses such as those incurred looking for a new job or to compensate for emotional distress caused by the discrimination. Punitive damages are awarded when the employer has been especially malicious in their treatment of the employee.
There are caps placed upon compensatory and punitive damages based upon the number of employees in the company and those are as follows:
* For employers with 15-100 employees, the limit is $50,000.
* For employers with 101-200 employees, the limit is $100,000.
* For employers with 201-500 employees, the limit is $200,000.
* For employers with more than 500 employees, the limit is $300,000.
In Employment Law terms, sex discrimination harassment occurs when a hostile work environment is created. For example, if you are a female and your boss or co-worker regularly makes offensive remarks about your gender, women in general, your particular female characteristics or about organizations that are primarily female organizations so frequently or severe that your place of work becomes noxious, you may have a basis to file a suit. Also, an office policy that applies to both genders can cause discrimination if it has a negative impact on one sex and it is not necessary for the operation of the business. The harassment, however, cannot be isolated or infrequent and cannot be simple teasing.
Of course, sex discrimination harassment does not only protect women. It protects men as well. It also applies whether the harasser is male or female and whether the harassment comes from a supervisor, a co-worker, or even a client of the company.
Employment law remedies for sex discrimination harassment are in place to put the employee back in a position they would have been had the discrimination not occurred. This could be reinstatement, raise or promotion. But it doesn't necessarily stop there. Remedies may also include compensatory or punitive damages. Compensatory damages may be awarded for out of pocket expenses such as those incurred looking for a new job or to compensate for emotional distress caused by the discrimination. Punitive damages are awarded when the employer has been especially malicious in their treatment of the employee.
There are caps placed upon compensatory and punitive damages based upon the number of employees in the company and those are as follows:
* For employers with 15-100 employees, the limit is $50,000.
* For employers with 101-200 employees, the limit is $100,000.
* For employers with 201-500 employees, the limit is $200,000.
* For employers with more than 500 employees, the limit is $300,000.
Monday, October 11, 2010
Personal Injury Attorney in Boise ID Discusses Slip and Fall, Car Accident and Negligence - Helpful Tips When You Have Been Injured
As a Boise Personal Injury Attorney I have seen many valid personal injury claims in Idaho be denied or reduced because a trusting individual was told by an insurance company to sign a document that they didn't understand. That is right, the insurance companies are NOT on your side.
The first and most important thing to do if you have had a slip and fall, been in a car accident or have been injured because of the negligence of another, is DO NOT sign anything before seeking the counsel of a personal injury attorney. In a perfect world, that wouldn't be necessary, but we don't live in a perfect world and the insurance companies don't want to pay anymore than they have to. Your medical bills, your wage claim and your pain and suffering are monetary damages that you are entitled to and you don't want those reduced because the adjuster sounded so nice.
This is not to say that you shouldn't be considerate to the insurance company adjuster. Their employment is dependent upon them not giving out too big of claims too often. If you have been injured in a slip and fall, in an accident or by the negligence of another and you know that you are in pain and that they are responsible, there is no need to get angry with the insurance company. They need to listen to you and your concerns. This is where it is handy to have a personal injury attorney because then you don't have to deal with them; you don't need to worry about saying something wrong or giving too much information.
Another very important thing to keep in mind if you have been injured in a car accident, had a slip and fall or have been injured because of the negligence of another, is don't minimize your pain to seem brave or so as not to make a scene. Also, don't deny medical attention. You need to be checked out so an injury isn't overlooked or attributed to something else. It is also very important to follow your doctor's orders so that the insurance companies can't claim that your injury was exacerbated by you failing to do what was ordered.
As always, you should document everything because our memories fail but also so you will have an immediate record of what has occurred. Keep with it all the names and addresses of any witnesses and photographs that you may have.
These tips will help you get through the legal ordeal of a slip and fall, a car accident or an injury caused by the negligence of another. You have rights and no one should take away or minimize your monetary award for a personal injury including doctors' bills, a wage claim or pain and suffering.
The first and most important thing to do if you have had a slip and fall, been in a car accident or have been injured because of the negligence of another, is DO NOT sign anything before seeking the counsel of a personal injury attorney. In a perfect world, that wouldn't be necessary, but we don't live in a perfect world and the insurance companies don't want to pay anymore than they have to. Your medical bills, your wage claim and your pain and suffering are monetary damages that you are entitled to and you don't want those reduced because the adjuster sounded so nice.
This is not to say that you shouldn't be considerate to the insurance company adjuster. Their employment is dependent upon them not giving out too big of claims too often. If you have been injured in a slip and fall, in an accident or by the negligence of another and you know that you are in pain and that they are responsible, there is no need to get angry with the insurance company. They need to listen to you and your concerns. This is where it is handy to have a personal injury attorney because then you don't have to deal with them; you don't need to worry about saying something wrong or giving too much information.
Another very important thing to keep in mind if you have been injured in a car accident, had a slip and fall or have been injured because of the negligence of another, is don't minimize your pain to seem brave or so as not to make a scene. Also, don't deny medical attention. You need to be checked out so an injury isn't overlooked or attributed to something else. It is also very important to follow your doctor's orders so that the insurance companies can't claim that your injury was exacerbated by you failing to do what was ordered.
As always, you should document everything because our memories fail but also so you will have an immediate record of what has occurred. Keep with it all the names and addresses of any witnesses and photographs that you may have.
These tips will help you get through the legal ordeal of a slip and fall, a car accident or an injury caused by the negligence of another. You have rights and no one should take away or minimize your monetary award for a personal injury including doctors' bills, a wage claim or pain and suffering.
Tuesday, October 5, 2010
Boise Divorce Attorney Discusses Child Support Mandatory Withholding in Child Custody Cases and Related Employment Law Issues
As a Boise Divorce Attorney I am regularly greeted with a groan when I tell my clients that in their child custody cases they will be ordered to have mandatory withholding of their child support obligation.
The legislature required that child support be automatically withheld because there are a significant number of people who owe child support and do not pay it. Because every parent has an obligation to provide for the care and support of their child, the legislature found that automatic withholding was an effective remedy for non-payment.
In all child custody cases the court orders automatic withholding of child support unless it can be shown that it is not in the best interest of the child. Good luck proving that! If a child custody case has been heard and an order issued but no automatic withholding was ordered, if that child support obligation becomes delinquent the court can and will go back and order automatic withholding.
An employer must obey the order to withhold the child support and if they do not they are subject to a $300 fine per each violation. One wouldn't necessarily think that there would be employment law issues in regard to child support, however, employment lawyers in Boise ID will tell you that is not the case.
If an employer fires you or refuses to employ you because you have a child custody order which requires that your child support be automatically withheld, employment law kicks in and punishes the employer. You can file an employment law claim against your employer and receive two times the salary your employer owes you plus attorneys fees. Employment lawyers in Boise ID will tell you that is a pretty good deal.
The legislature required that child support be automatically withheld because there are a significant number of people who owe child support and do not pay it. Because every parent has an obligation to provide for the care and support of their child, the legislature found that automatic withholding was an effective remedy for non-payment.
In all child custody cases the court orders automatic withholding of child support unless it can be shown that it is not in the best interest of the child. Good luck proving that! If a child custody case has been heard and an order issued but no automatic withholding was ordered, if that child support obligation becomes delinquent the court can and will go back and order automatic withholding.
An employer must obey the order to withhold the child support and if they do not they are subject to a $300 fine per each violation. One wouldn't necessarily think that there would be employment law issues in regard to child support, however, employment lawyers in Boise ID will tell you that is not the case.
If an employer fires you or refuses to employ you because you have a child custody order which requires that your child support be automatically withheld, employment law kicks in and punishes the employer. You can file an employment law claim against your employer and receive two times the salary your employer owes you plus attorneys fees. Employment lawyers in Boise ID will tell you that is a pretty good deal.
Friday, October 1, 2010
Boise Divorce Attorney Discusses What To Expect if a Protection Order Has Been Filed Against You in a Child Custody Case in Idaho.
While the importance of a protection order cannot be emphasized enough, sometimes in high conflict divorce and child custody cases a parent will file a protection order against the other parent claiming physical abuse or neglect. As a Boise Divorce attorney I often see this done as a tactic to prevent one parent from getting a fair child custody determination. In Idaho the protection order is heard outside the divorce court at a special protection proceeding.
If you find yourself in this situation you need to act fast. In Idaho the consequences of blowing off a child protection hearing are huge and can have lasting effects on your child custody rights. You have a small window of time to get all the necessary paperwork filed and to the court and you MUST show up at the evidentiary hearing. This is your opportunity to cross examine the party claiming abuse or neglect and employees of the state authorized child welfare office, CARES. If you want to cross examine the witnesses, which you almost always have to do, you need to file a 24 hour notice with the court of your intent to do so. This is where you need the help of an experienced Boise Divorce Attorney, because you cannot afford to mess this up.
Child custody in Idaho should be should be determined fairly and in accordance with the best interest of the child. When child custody is falsely taken out of the divorce court no one wins.
For more information concerning divorce, child custody and child support, contact Boise Divorce Attorney, Patrick Kershisnik at (208)472-2383 or visit his him on the web at
http://www.lawboiseid.com
If you find yourself in this situation you need to act fast. In Idaho the consequences of blowing off a child protection hearing are huge and can have lasting effects on your child custody rights. You have a small window of time to get all the necessary paperwork filed and to the court and you MUST show up at the evidentiary hearing. This is your opportunity to cross examine the party claiming abuse or neglect and employees of the state authorized child welfare office, CARES. If you want to cross examine the witnesses, which you almost always have to do, you need to file a 24 hour notice with the court of your intent to do so. This is where you need the help of an experienced Boise Divorce Attorney, because you cannot afford to mess this up.
Child custody in Idaho should be should be determined fairly and in accordance with the best interest of the child. When child custody is falsely taken out of the divorce court no one wins.
For more information concerning divorce, child custody and child support, contact Boise Divorce Attorney, Patrick Kershisnik at (208)472-2383 or visit his him on the web at
http://www.lawboiseid.com
Subscribe to:
Posts (Atom)
