Showing posts with label Idaho. Show all posts
Showing posts with label Idaho. Show all posts

Wednesday, April 20, 2011

Boise Divorce Attorney - Boise Family Law Lawyers - Boise Custody Attorneys Lawyer

Kershisnik Law, (208) 472-2383, Boise Divorce Attorney, Idaho Family Law Lawyers, divorce, custody, modification, child support, family law.

As a Boise Divorce Attorney I often get calls concerning child support. There are many issues surrounding child support. They can be pursuant to a divorce or a custody proceeding or any other variety of scenarios. A frequent situation that I am involved in regard to Medicaid or other state assistance.

When a parent is receiving state funds or insurance through TAFI, or aid to needy families, there are certain rules that apply to child support. If you are receiving aid you are required to assign your right to child support payments to the state. Any monies you are owed pursuant to a divorce, custody or paternity order must be paid to the state in exchange for the support they are providing you in relation to TAFI.

This is an important point because as a Boise Divorce Attorney I often hear disparaging comments from people insinuating that a party is receiving child support from them and Medicaid or food stamps or the like. This simply is not the case.

If you need to speak to a Boise Divorce Attorney or an Idaho Family Law Lawyer, please call (208) 472-2383. You can also visit our website and fill out the quick contact form and one of our attorneys will get right back to you. There you can tell our lawyers how you would like them to contact you.

Monday, April 4, 2011

Boise Divorce Attorney - Divorce Attorneys, Family Law Lawyers, Probate Attorneys, Boise, Idaho

Boise Divorce Attorneys - Boise Probate Attorneys - Family Law Lawyers, (208)472-2383

Today I am going to discuss probate and divorce. What do probate and divorce have to do with each other? A lot, especially when you get divorced and forget to change your will.

As a Boise Divorce Attorney, a piece of advice I always give my divorce clients is, "don't forget to change your will". People often think that once they get divorced, the "spouse" in their will will automatically mean their new spouse. That is not necessarily the case.

If you have written your will to include the language, "my spouse, Jane Doe" and then you divorce Jane Doe, will a court automatically presume you mean your new spouse Susie Q? The Idaho Probate Code has a provision that covers omitted spouses. If you write your will and you leave out your spouse, unless there is evidence to show that it was intentional, your spouse will be given the share that they would have been given if you died intestate (without a will).

So that is the easy part. If you write in your original will, "I leave my property to Jane Doe" and then you divorce and then remarry but you don't take the advice of your Boise Divorce Attorney and you don't change your will and you remarry. Then what happens? Will Jane Doe take a portion of your property, along with Susie Q. As Jane Doe's Boise Probate Attorney, I certainly would argue that she should. Of course, Susie Q's Boise Probate Attorney would argue the contrary.

If you don't take the advice of your Boise Divorce Attorney and change your will when you get a divorce, you could end up with this problem. The Idaho Code can help get your new spouse her share of the property but your ex spouse may still take under your original will. Just a thought!

If you need to speak to a Boise Divorce Attorney or a Boise Probate Attorney, please call, (208) 472-2383 or visit our website. There you can fill out a quick contact form and one of our attorneys will get right back to you.

Friday, April 1, 2011

Boise Divorce Attorney - Family Law Lawyers - Custody Attorneys - Grandparents' Rights

Boise Divorce Attorney, Family Law Lawyers, Custody Attorneys, call (208) 472-2383 for a free consultation, divorce, custody, modification, child support, visitation, domestic violence, termination, adoption and all family law issues.

As a Boise Divorce Attorney, I occasionally get calls from grandparents who are raising their grand kids. Often these kids were just left with Grandma and Grandpa and neither parent has any contact with the kids. Often it is the case that there was never a divorce between the parents or, if the parents weren't married, a custody order establishing who should have custody of the children.

What can I do, as a Boise Divorce Lawyer, to help these grandparents get a legal status in relation to the grandchildren? Idaho has a statute that is called the De Facto Custodian Act. What this does is it allows grandparents, or anyone else in the postition of caring for children who were left with them, a legal status known as a de facto custodian. There are rules promulgated by the statutes as to the length of time a child must reside with a party before they can be legally considered a de facto custodian.

Once the time requirements have been met the grandparents can, by themselves or with a Boise Divorce Attorney, file a petition to be named de facto custodian and file for custody of the children. Again there are requirements that have to be met and your Boise Divorce Lawyer must show that it is in the best interest of the child for custody to be placed with the grandparents. If the parents have abandoned the children this is not necessarily a difficult task. Once the court finds that it is in the best interest of the children a custody order is issued and the grandparent's take legal custody of the children.

The order can be challenged upon the showing that it is no longer in the best interest of the children to be in the grandparents' custody. This can and does happen and when it does it can open a whole other can of worms dealing with grandparents' visitation rights which will be addressed in a later blog.

As a Boise Divorce Attorney people often ask me what type of situation results in custody being placed with a de facto custodian. In general, it occurs when the parents are involved with drugs or in criminal activity. Meth children, when Health and Welfare have not taken the children away, are a good example of where I hear the most about the need for the de facto custodian act.

If you need to speak to a Boise Divorce Attorney or have divorce or custody issues you would like to address, please call (208) 472-2383

Boise Criminal Lawyers, Boise DUI Attorneys, Boise Divorce Attorney, Boise Family Law Lawyer, Boise Probate Attorneys

Boise Criminal Lawyers, DUI Attorneys, Boise Divorce Attorney, Family Law Lawyer, Boise Probate Attorneys in Idaho, (208) 472-2383, criminal defense, DUI, DWP, divorce, custody, family law, probate, wills, trusts, estates and estate planning in Idaho.

Boise Criminal Lawyers operate in the world of the criminal court. In addition to seeing a whole spectrum of crime in Idaho, every Boise Criminal Lawyer sees the penalties bestowed upon those who have committed a crime. As a Boise Criminal Lawyer, people always ask, "what penalty will I get". The best answer any criminal lawyer can offer is "it depends". There is no black and white answer because the law sets forth the maximum penalty, and sometimes the minimum penalty, but the actual penalty you receive will depend upon a variety of things. The penalty for a crime if Idaho varies based upon the judge, the prosecuting attorney, the state's lawyer, and the crime itself. Every judge looks at things differently and each prosecutor offers different plea agreements. It also depends upon if you take your case to trial or if you accept a plea agreement.

In addition the penalty an offender receives is based upon a variety of other things including the crime itself, whether it was a misdemeanor or a felony, if there were multiple crimes, if any of the crime was aggravated by the use of deadly force and how many other criminal convictions the person has received.

Often, when the party being charged with the crime is not a repeat offender, the penalty will be less. Judges will give, or prosecuting attorneys will offer suspended portions of the sentence. A good example of this is jail time. If a crime sets a maximum penalty of 30 days in jail, a judge might order 30 days with all 30 days suspended. So, does this mean that you are off scott free? Not necessarily. When you commit a crime in Idaho you are also placed on probation, or parole if the original sentence included time in the state penitentiary. What probation or parole does is places a time frame where if you commit another crime, or violate any term of your probation or parole while you are on probation or parole, the judge can cause the entire suspended sentence to be reinstated and you will have to serve or pay any portion of the penalty that was suspended.

If you need to speak to an attorney, including a Boise Criminal Lawyer or a Boise DUI Attorney, a Boise Divorce Attorney, a Boise Probate Attorney or an Idaho Family Law Lawyer, please call, (208) 472-2383. You can also visit our website and fill out a quick contact form and one of our lawyers will get right back to you. Please let our attorneys know the best way to contact you.

Wednesday, March 30, 2011

Boise Divorce Attorney - Boise Family Law Lawyers - Boise Custody Attorney - Out of State Custody Issues

Boise Divorce Attorney, Boise Family Law Lawyers, Boise Custody Attorney, call (208) 472-2383 free consultation, divorce, custody, modification, visitation, child support, adoption, termination, domestic violence, all family law issues.

Custody issues are routinely litigated in Idaho Courts, but when can you bring a custody issue in an Idaho Court? This is a regular question heard by Boise Divorce Attorneys. You can file for divorce in Idaho after you have resided here for six weeks. Custody, however, is a different issue. You cannot file for custody in Idaho unless the child has resided here for 6 months.

As a Boise Divorce Attorney I often see cases where the parties have lived in a different jurisdiction, they decide to divorce and one party or the other moves to Idaho. They often don't file for divorce until they come to Idaho. So what happens when they move here and want to divorce and have their custody issues heard? They can file for divorce, but they cannot have an Idaho Court hear their custody issues for 6 months. In a sense, this is a bifurcated action.

As a Boise Divorce Attorney, I regularly see people who have left one jurisdiction or the other without the consent of the other parent. So, what happens then? Can the other parent can file for custody, and for divorce in the state where they reside? There is something known as the Uniform Child Custody Act which allows an Idaho Court to throw the custody issues back to the child's home state. But the act also does allow an Idaho Court to exercise jurisdiction if there is an imminent danger to the child. Boise Divorce Lawyers often see this when one parent won't allow another parent to exercise visitation across state lines. Another issue where Boise Divorce Lawyers see the Uniform Child Custody Act in action is when one parent moves to another state with the child without the other parent's permission.

So what happens when one parent moves to Idaho with a child and the other parent has never set foot in Idaho? Does Idaho have jurisdiction over the child? If the parent not residing in Idaho does nothing for 6 months then Idaho can exercise jurisdiction. But, as a Boise Divorce Attorney I would not suggest that you do nothing. There are special rules about jurisdiction and if you have never been to Idaho you will want a Boise Divorce Attorney to file a special appearance for you so that Idaho cannot exercise jurisdiction over you. An analogy for this might be if you committed a crime in state x, you could not be tried in Idaho for that crime because you do not have any contact in Idaho. Any Boise Criminal Lawyer would never allow you to submit yourself to Idaho jurisdiction. Likewise, if you have never been to Idaho, an Idaho Court will not here your custody issue, unless your child has been here for 6 months. So if you don't live in Idaho but a custody action is filed here before the child lives here for 6 months, a Boise Divorce Lawyer will go to court for you to tell the Idaho Court that it does not have control over you. The odd thing is that if you, yourself come to Idaho, then Idaho can exercise jurisdiction over you. Boise Divorce Attorneys facing this issue will inform the court that they do not have jurisdiction over you or the child and therefore the custody issue cannot be heard in Idaho, unless of course there is imminent harm to the child. Just like Boise Criminal Lawyers, Boise Divorce Lawyers want to make certain that you do not subject yourself to jurisdiction when no control is warranted by an Idaho Court.

If you have a custody issue in Idaho or are seeking a divorce in Idaho and you need to speak to a Boise Family Law Lawyer, please call, (208) 472-2383 or visit our website. Here you will find a quick contact form. If you fill it out one of our Boise Divorce Lawyers or Boise Family Law Lawyers will contact you immediately.

Tuesday, March 29, 2011

Boise Divorce Attorney - Custody Lawyers - Family Law Attorneys - Name Change in Idaho

Boise Divorce Attorney, Boise Custody Lawyers, Boise Family Law Attorneys in Idaho, call (208) 472-2383, free consultation or visit www.lawboiseid.com, divorce, custody, support, all family law matters.

Boise Family Law Attorneys frequently get the question of, "how do I change my name in Idaho" or "can I change my name in Idaho"? There are many instances where you might want to change your name. For example, you might consult a Boise Divorce Attorney about a name change if your divorce decree did not order your name be changed and you decide that you would like to have your maiden name back. Another situation where a name change would be in order would be in an adoption situation. In the original adoption you can request that the child's name be changed but if it was omitted for some reason, a Boise Family Law Lawyer can file a separate petition for name change. Still another reason you might seek a name change would be in a custody situation. If one parent is ordered sole legal custody, for example, that parent may want to discuss the possibility of a name change with a Boise Custody Attorney. A final example of a name change that doesn't involve divorce, custody or adoption, is personal preference. Boise Family Law Lawyers sometimes hear that people simply don't like their names, and they can help you to change your name legally.

Boise Divorce Attorneys regularly request that a party's name be changed back to their maiden name pursuant to a divorce decree. Boise Custody Lawyers also regularly request that a child's name be changed when sole custody is ordered. Likewise, Boise Family Law Lawyers regularly request that a child's name be changed pursuant to an adoption. What then do you do if this request is not made, or you simply want to change your name?

Name change is a fairly simple process. Idaho Code Title 7 Chapter 8 deals with a name change in Idaho. You must file a petition in the county where you reside. In addition, the petition must state your current name, proposed name change, reason for changing it, your place of birth and where you reside. Once your petition is filed you must run a notice in your local paper for 4 consecutive weeks. After that time has run you can have a hearing for your name change.

The four weeks gives parties who might object to your name change a chance to hire an attorney and contest the name change.

If you need to speak to a Boise Family Law Lawyer, please call (208) 472-2383 or visit one of our websites. www.lawboiseid.com or www.divorceboiseid.com. Here you will find helpful information about family law, divorce, adoption and custody in Idaho. You will also find a quick contact form. You can fill out the form and one of our Boise Divorce Attorneys or Boise Family Law Lawyers will get back to you immediately.

Saturday, March 26, 2011

Boise DUI Lawyers - Idaho Criminal Attorneys - Military DUI

Boise DUI Lawyers, Idaho Criminal Attorneys, Boise Divorce Attorney, Idaho Family Law Lawyer, call (208) 472-2383, DUI, DWP Criminal Defense, Divorce, Custody, Family Law, Military Divorce, Military DUI.

Being charged with a DUI is one thing, but being charged with a military DUI or being a civilian and being charged with a DUI on a military base is something entirely different. Just like military divorce and custody issues, military DUI issues have additional rules and laws and therefore a military DUI will have additional consequences and penalties.

Boise DUI Lawyers who specialize in military cases are intricately familiar with the different types of cases involving the military and a DUI.

The first type of military DUI is when a member of the United States Armed Services gets a DUI off a military base. In a non-military DUI, Boise DUI Lawyers are dealing with two different aspects of the driving under the influence case. First, there is an administrative aspect, where the Boise DUI Lawyer deals with the Idaho Department of Transportation. Here, you will receive an administrative suspension of your driver's license. The second aspect of the DUI is where you and your Boise DUI Attorney go to an Idaho Court and deal with Idaho Law. Here you face the court and the state's lawyer, the prosecuting attorney, and ultimately you are convicted, plea or found not guilty to a DUI.

If you are a service member and you get a DUI, not only do you have to deal with this aspect of your driving under the influence charge, but you also have to deal with military rules and penalties. These are outlined in Article 111 of the Uniform Code of Military Justice and the Manual for Court Martial. You are potentially on for a stiffer sentence, because in addition to state court penalties including fines, possible jail time, license suspension, alcohol evaluation, a functioning vehicle ignition interlock device and probation, you can receive additional penalties from the military court. These can include a rank reduction, pay reduction, loss of security clearance, additional fines, a reprimand or even a dishonorable discharge. There is no maximum penalty set by military law for a military DUI. There are additional penalties because the military has its own jurisdiction and just like military divorce and custody there are additional rules promulgated by the military.

A second DUI issue involving the military that Boise DUI Lawyers see is when a civilian gets a DUI on a military base. You likely will be charged in Federal Court instead of Idaho Court, but depending upon where you were charged and if there is overlapping jurisdiction you may be charged by an Idaho State Court. You will receive a letter in the mail informing you what court your case will be brought in so it is very important that you keep your eyes open for this. If it is in Idaho Court, you will need a Boise DUI Lawyer. If it is in Federal Court you will need a Boise DUI Attorney who practices in Federal Court. Even if your case is brought in Federal Court, in general Idaho Law will apply because of a principle called assimilation which allows Idaho Law to be used. The penalties in general mirror state penalties but the Federal Prosecuting Attorneys have more ability to be flexible than State Prosecuting Attorneys and consequently it can actually be easier to avoid jail time and probationary periods.

The military is a world of its own. It has its own jurisdiction as well as concurrent jurisdiction with individual states. Whether the issue is one of a criminal charge, a DUI or matters of divorce, custody or contract, to name a few, there are often special rules involving military cases.

If you have a military issue and need to speak to a Boise DUI Lawyer or Criminal Attorney, or a Boise Divorce Attorney or Family Law or Custody Lawyer who deals with military DUI, military criminal defense, military divorce or military family law and custody issues, please call, (208) 472-2383. You can also visit one of our websites for more information. On our website there is a quick contact form. You can fill this out and one of our Boise Divorce Attorneys, Boise DUI Lawyers or Boise Criminal Lawyers will get right back to you.

You can also visit us for more information on divorce, custody, family law, DUI, DWP and numerous crimes in Idaho.

Wednesday, March 23, 2011

Boise Divorce Attorney - Child Custody Lawyers - Family Law Attorneys - Divorce Statistics in Idaho

Boise Divorce Attorney Lawyers, Custody Attorneys Lawyer, (208) 472-2383, free consultation, divorce, custody, family law in Idaho.

Divorce statistics are obviously interesting to Boise Divorce Attorneys. As a Boise Divorce Attorney I see correlation between increased divorce clientele and the statistical divorce rate.

The United States Census Bureau keeps and distributes statistics on individuals and businesses in the United States as well as for individual states. Every 10 years a new census is taken. Often these statistics are compared to previous years and take different angles on information assessed.

As a Boise Divorce Attorney I am interested in the rate of marriage and divorce in Idaho. The marriage rate in Idaho increased only slightly between 1990 and 2008. In 1990 there were 14,100 marriages. In 2008 there were 14,600 (census.gov). In comparison to the leveling off of marriage in Idaho, the divorce rate increased substantially. In 1990 there were 6,600 divorces. By 2008, there were 7,400. In 1990 the divorce rate in Idaho was just under 47%. By 2008 the divorce rate increased to just under 51%. How does Idaho compare to the United States? While the Census Bureau has not provided those percentages for 2008, there is a general consensus that the divorce rate hovers between 50-51%.

Another interesting factor to Boise Divorce Attorneys is the actual decline in anniversaries celebrated. As a Boise Divorce Attorney I often hear couples lament that a divorce is happening between them or their friends after numerous years of marriage. This, it turns out, is more common than you would think. The Census Bureau reports that the number of couples reaching subsequently more years of marriage declines at a fairly rapid rate. For example, in 1959 96.4% of men and 94% of women reached their 5th anniversary. By the fortieth anniversary, only 61.4% of men and 54.7% of women were still married. In contrast, by 1994 only 89.4% of men and 87.2% of women reached their 5th anniversary and only 70% of men and 69.2% of women reached their 10th anniversary.

Another interesting statistic to Boise Divorce Lawyers and Custody Attorneys reported by the Census Bureau is the number of households living without a spouse. In 1990 there were 2,884,000 men and 10,890,000 women living in a household in without a spouse. By 2009 that number increased to 5,252,000 for men and 14,480,000 women living in a household without a spouse. Of those household, 22.8 % of of children under 18 lived solely with their mother and only 3.4% were living in the sole custody of their fathers. What that statistic translates into for Boise Divorce Lawyers is more kids living with only one parent and more custody issues.

An interesting factor reported by the Census Bureau, but without context or explanation as to how it fits within divorce and custody statistics, is that the number of stay-at-home parents has increased by 749,000 between 1995 and 2009.

After reviewing these statistics it is clear that the number of divorce and custody cases in Idaho is on the increase. While statistics are interesting they just address the facts. They don't shed any light on the cause of divorce or the increase in the number of divorce cases.

If you are experiencing a situation with your marriage and need to speak to a Boise Divorce Attorney or an Idaho Custody Lawyer, please call (208) 472-2383 On our website you will find a quick contact form. You can fill that out and one of our Boise Divorce Attorneys will contact you immediately.

Saturday, March 19, 2011

Boise Divorce Attorney - Boise Family Law Lawyers - Motion for Reconcilliation

Boise Divorce Attorney, Boise Family Law Lawyers, call (208) 472-2383, family law including divorce, custody, modification, visitation, termination, adoption and domestic violence.

What happens if you file for divorce and you are well into the proceedings and you decide that you might not want to get a divorce after all? Believe it or not, Boise Divorce Attorneys get asked this question all the time. Do you have to withdraw your complaint? The answer is no, not necessarily and not immediately.

Your Divorce Attorney can file what is known as a motion for reconciliation. Under Idaho Code 32-716 you can file the motion to stay the divorce. If the judge sees that attempts to reconcile are probable, practical and in the best interest of the family, he or she can order a temporary stay if there are minor children in the household. The stay is good for up to 90 days. This places the divorce on hold and any custody issues too. This gives the family a chance to reconcile and perhaps not go forward with the divorce.

During the stay, the temporary custody orders remain in effect. You retain your Boise Divorce Attorney and you try to reconcile. If you do decide to get back together, you Divorce Lawyers with stipulate to dismissal without prejudice. The without prejudice is lawyer speak for meaning that if at a later point you decide once again to file for divorce and custody you are not barred from doing so.

The Idaho Code is specific that agreeing to try and reconcile is in no way a condonation by either party for the grounds for divorce. Again, this is Boise Divorce Attorney speak for meaning that you are not ok with what were the grounds for divorce.

If you are seeking a divorce and custody in Idaho and need to speak with a Boise Divorce Attorney please call (208) 472-2383. At our website you can fill out a quick contact form and one of our Boise Divorce Lawyers will get right back with you.

Friday, March 11, 2011

Boise Divorce Attorneys - Idaho Lawyers - Divorce, Military Divorce, Deployment and the $8000 Tax Credit

Boise Divorce Attorneys - Idaho Lawyers, Divorce, Custody, Military Divorce, Child Support, Visitation, Modification, call (208) 472-2383 for your free consultation.

What happens when you and your spouse purchased a home with the help of stimulus money for first time home owners and you get a divorce and must sell the home before the three year ownership rule kicks in? What happens if you are in the military and are deployed before the three years and you have to sell your home? What happens if you are in the military, you are deployed and you get a divorce and must sell the home before the three year time requirement?

These are common questions for Boise Divorce Attorneys. The law which governs this is set forth by the IRS and set forth in form 5405.

In general, if you get a divorce before the three year payback threshold, you must payback the $8,000 credit. The payback amount, however, is limited to the amount of the gain, if the home is sold to someone not related to you. You must include the amount of the credit to be paid back, generally the entire $8,000 unless the gain from the home sale is less than that, as an additional tax on your tax return. For Boise Divorce Lawyers, this is an easy answer.

If you are in the military and you are deployed, you are exempt from paying back the tax credit if the home is sold before the three year payback threshold. For Idaho Lawyers, this is an easy question.

Here is the tricky question for Boise Divorce Attorneys - What if you purchase the home and you are deployed and you get a divorce before the three year payback threshold? Then what?

According to the IRS and Part III, line 12 of IRS Form 5405, if the home is sold in connection with Government orders for qualified official extended duty service you are not required to pay back the credit. Qualified official extended duty service means serving at a duty station at least 50 miles from your home or living in Government quarters upon Government orders. You are on extended duty when you are deployed for active duty for more than 90 days and for an indefinite time period.

So what happens when you have two triggering events; deployment and divorce? As a Boise Divorce Attorney I think the answer lies in the chain of events. Did you get orders for deployment and were prepared to put the home on the market and then decided to divorce? Did you get orders for deployment but were already in the process of divorce? Did you file for divorce and were subsequently deployed? Basically, what was the actual reason for the sale of the home? Divorce or deployment?

What happens then if the time line shows that the actual reason for the sale of the home was divorce? If the home is sold, pursuant to the divorce decree, the credit is to be repaid by both parties in equal amounts. If the home is transferred to an ex-spouse pursuant to a divorce settlement, the responsibility of repayment of the total credit shifts to the spouse receiving the home if they sell it before the three year period.

One further complication for divorce lawyers and divorce clients - what happens if the divorce occurs before the three year period and as part of the divorce settlement the home is to be sold but the home does not actually sell until after the three year period expires? Repayment of the entire credit does not kick in until the actual date of the sale. So, if the sale does not happen until the three year period expires, no repayment is required.

Another further complication for attorneys and client alike, we are after all dealing with the IRS, is payback in general. There are actually two different types of payback and two different requirements depending upon when the home was purchased. If you purchased a home in 2008 and you hold onto the home for the long term you must begin repaying the credit with your 2010 taxes over the next 15 years. If, however, you purchased your home after 2008 and you do not sell it you don't have to repay the credit. Even if you sell the home purchased after 2008 before the three year threshold, you may not have to pay the credit back if you acquire a new home within 2 years and you live in that home for the remainder of the original 36 month period. And of course, because it is the IRS, there are all sorts of exceptions and limitations depending upon other triggering event (condemnation, foreclosure etc.). How can a tax attorney keep all this straight?

If you need to speak with a Boise Divorce Attorney or you have questions about divorce, military divorce or other family law issues, please call (208) 472-2383.

Thursday, March 10, 2011

Boise Divorce Attorneys - Custody Lawyers - Paternity Fraud

Boise Divorce Attorneys - Custody Lawyers in Idaho - call (208) 472-2383 for your free consultation today.

Boise Divorce Attorneys hear it all the time. Custody Lawyers hear it all the time. We have all heard the story. Our buddy, Joe Q. Public, tells us that his girlfriend, Jane Doe got pregnant, she told him it was his baby, they got married, they got a divorce, they had a custody hearing, she got custody, he got visitation, he was ordered to pay child support, he paid child support for two years, he exercised his visitation for two years and he just came to find out on Facebook that he is not the biological father and she knew it all along.

Should paternity by fraud be a criminal charge in Idaho? The Idaho legislature didn't go as far as to make it criminal but they did enact Idaho Code 32-1009, Paternity Fraud - Child Support Restitution.

Idaho Code 32-1009 says that an Idaho Court can vacate a child support order if a man has been named the biological father of a child and has been ordered to pay child support if he shows (if his custody lawyers show) by clear and convincing evidence (this is a criminal level of proof), that he is not the father and that mother of the child knowingly and intentionally misrepresented that he was the father of the child.

So what does that do for Joe Q. Public? Once he finds out that he is not the father and that the mother perpetrated fraud, he has two years to file a petition to terminate the child support order. In addition, he can request, and an Idaho Court can order, that either the mother, or the real biological father pay him restitution for the amount of child support that he has paid for the child.

Advice from a Boise Divorce Attorney? Be careful what you post on Facebook. It can be and will be used against you in a court of law.

If you need to speak to a Boise Divorce Attorney or an Idaho Custody Lawyer, please call (208) 472-2383.

Tuesday, March 8, 2011

Boise DUI Lawyers - Idaho Criminal Attorneys - Field Sobriety Tests

Boise DUI Lawyers - Criminal Attorneys in Idaho - DUI, DWP, Criminal Defense, call (208) 472-2383 free consultation.

Boise DUI Lawyers are always asked what the standard field sobriety tests are and if they are valid. The National Highway Traffic Safety Administration (NHTSA) developed three standardized tests to determine if there is probable cause to arrest an individual suspected of DUI. Standardizing the tests ensures consistency.

The three standardized tests are the Horizontal Gaze Nystagmus (HGN), Walk and Turn (WAT) and the One Leg Stand (OLS). These tests are used once an officer has probable cause to pull an individual over on suspicion of DUI. Once pulled over the officer administers the three standardized tests which provide the evidence for probable cause to make a DUI arrest and administer a breathalyzer test.

Boise DUI Lawyers may challenge probable cause for the initial pulling over as well as the probable cause based on the results of the field sobriety tests. Attorneys use challenges to probable cause to exclude evidence. Once the evidence is excluded the prosecuting attorney, the state's lawyer, may or may not have enough evidence to go forward to charge an individual with DUI.

The Horizontal Gaze Nystagmus works on the principle of eye muscle control. An individual who has not been drinking will show rapid eye jerking when the eyes are elevated to the maximum level. An individual who is intoxicated will show these jerking movements at less elevated levels as well as will have difficulty tracking with their eyes.

The Walk and Turn test requires an individual who is suspected of drinking and driving to walk nine steps from heel to toe and turn on one foot. The officer looks for clues as the suspect performs the tests. Such clues are inability to balance while listening to the directions, inability to walk heel to toe, inability to maintain walking in a straight line and failure to turn on one foot on the ninth step. As a Boise DUI lawyer I see people fail this test all the time, but I might suggest that even a non intoxicated individual may have difficulty performing this one.

The One Leg Stand test requires an individual who is suspected of drinking and driving to stand with one foot elevated about 6 inches above the ground and count by thousands for thirty seconds. As the suspect counts, one-thousand one, one-thousand two etc, the officer looks for wobbling, swaying, hopping or putting your foot down. Two or more of these indicators, according to the NHTSA, suggests the individual has an 83% chance of having over a .08 BAC. Again, as a Boise Criminal Lawyer I see individuals charged with DUI failing this test regularly. And, again, I would suggest that most people, especially the older you get, will fail this test.

DUI officers are trained to look at the three tests individually and as a whole. When looking at the results of all three tests they get what is known as a Combined Measures. With this they look at all three tests and evaluate the likelihood that the failures of the individual tests equal a DUI.

So, these are the standardized tests to establish probable cause for arrest on DUI. Are they effective? Can they be challenged?

According to the NHTSA, when comparing percentage of those actually found to have a BAC of greater than the legal limit from 1981 v. 1998, the accuracy of the tests due to training increased substantially. In 1981, when the legal limit for driving under the influence was .1, the accuracy for field sobriety tests were: HGN - 77%, WAT - 8% and the OLS - 65%. The Combined Measures resulted in an 81% accuracy arrest for DUI. In 1998, when the legal limit had been reduced to .08, the results were: HGN - 88%, WAT - 79%, and OLS - 83%. This translates into a Combined Measure accuracy of 91%.

In light of the NHTSA accuracy statistics can a DUI Lawyer still challenge the results. Absolutely. There are many factors which can go into failing a field sobriety test. Some examples of this are medical conditions such as vertigo or eye disease. Medications which have not legally impaired your ability to drive may make your balance on one leg questionable or cause you to have light sensitivity which could effect the HGN. DUI Lawyers will ask an individual charged with driving under the influence if they have any conditions which might impair their ability to take a standardized field sobriety test, but if you are pulled over on the suspicion of DUI and have a condition which might effect you performance, you should always let the officer know.

If you have been charged with DUI in Idaho and need to speak to a Boise DUI Lawyer, please call (208) 472-2383.

Sunday, March 6, 2011

Boise Divorce Attorneys and Custody Lawyers - Divorce and Custody Considerations for Military Personnel

Boise Divorce Attorneys & Custody Lawyers in Idaho, call (208) 472-2383- free consultation. Kershisnik Law, PLLC

Boise Divorce Attorneys are often faced with unique considerations when it comes to divorce and custody in the military setting. The Soldiers and Sailors Civil Relief Act provides various protections for military personnel in a variety of areas including divorce, leases, eviction, interest rates, court proceedings, installment contracts and tax assessments.

In regard to divorce and custody, the SSCRA prevents a divorce proceeding from being taken by default. A military service member can by him or herself, by an attorney or through a letter from their commanding officer request that a divorce proceeding be suspended until the service person returns from active duty. Idaho law also protects soldiers but an Idaho Court can make a determination that a suspension of the court proceedings are not necessary. If, however, an Idaho court determines that to go forward without the soldiers presence would cause irreparable harm then they will issue a stay in the divorce proceedings until the soldier returns.

The SSCRA, however, does not apply to child support proceedings. Idaho Child Support can be set and an order issued regardless of a service person's duty status. Divorce and Custody Lawyers have a unique tool to use when it comes to child support, as well as spousal support in regard to military personnel. Service personnel on active duty are not exempt from providing child support to their children. They are not exempt from an Idaho Court establishing an order without their presence and they are required by military code of conduct to provide support for their children and their spouses. Army Regulation 608-99 establishes a duty for military personnel to provide such support even in the absence of a court order and if they fail to, they can be punished in a variety of ways. One interesting "loop hole" in AR 608-99 is that they do not have an obligation to provide support for an illegitimate child in the absence of a court order and therefore cannot be punished for not support a child who legitimacy is in question.

If a member of the military fails to provide the "just" support for their families, a non-military divorce lawyer or custody attorney can contact their Commanding Officer and report their failure to abide by AR 608-99. It is then up to the Commanding Officer to inform the service person of their failure and to direct them to make good on their obligations.

On one hand, the SSCRA protects service personnel on active duty from a variety of legal consequences, but on the other hand AR 608-99 protects the non-military spouse and the children from a service person hiding behind the SSCRA and not keeping up with their obligations.

Friday, March 4, 2011

Boise Divorce Attorneys - Custody Lawyers - Family Law Statutes

Boise Divorce Attorneys and Custody Lawyers in Boise, Idaho call (208) 472-2383.
As a Boise Divorce Attorney I work frequently within the world of the Idaho Family Law Statute. Idaho Code Chapter 32 deals with Domestic Relations. It covers everything from marriage, illegal marriage, divorce and the grounds for divorce to the parent child relationship in terms of custody and visitation as well as community property.

The Family Law Statute has changed over time. One specific example of this change has to do with common law marriage. At one point in Idaho history, the state recognized common law marriage. As of January 1, 1996 Idaho no longer does. If you were common law married before that date, meaning you put yourself out as a married couple a court would still consider you married and you could file for divorce and custody in Idaho.

What does it mean to put yourself out there as being married? A Boise Divorce Lawyer would present evidence to the court that showed you treated your relationship as one of a marriage, not just co-habitation. Examples of evidence an attorney might use to prove this might be filing joint tax returns, being claimed as a spouse on health insurance, purchasing a home together or telling people that you were married. However, having children together and co-habitating do not necessarily reach the level of evidence needed to prove marriage.

Why would your divorce lawyer want to prove that you were married? That family law statute that I mentioned above provides protection for married couples called community property. If you were living together, but were not married and one party worked and the other stayed home and the one that worked used their money to pay for the house and to pay for the car and all the other goodies, if they ever split up the person who paid for everything would get it all. Now that may be fine for the person who worked but the person who stayed home and took care of the house and the kids would get nothing.

Community property recognizes that it is a community effort to build the community and therefore it rewards each individual equally in terms of value.

If there were children to the common law marriage how custody and visitation would be determined for those children would be the same whether it was ultimately decided that a common law marriage did or did not exist. The parties would be ordered to mediation and if they could not agree on a custody arrangement both divorce lawyers would present evidence to show why their client is the party best suited to be the custodial parent or why it would be in the best interest of the child to have primary physical custody with one parent or the other. Ultimately, using requirements outlined in that family law statutes I spoke about above, an Idaho judge would determine what is in the best interest of the child.

Ultimately, if you are married and are going through divorce in Idaho or you are going through divorce in Idaho and have children or simply have children together in Idaho and are splitting up, you too will enter the world of the family law statute.

Wednesday, March 2, 2011

Boise DUI Lawyers - Boise Criminal Lawyers - DUI and Criminal Charges in the News

Almost everyday for the last few weeks the local newspaper has reported on a series of DUI or felony charges in Boise. Is there an increase in DUI and felony charges or are they being reported because of their extreme nature or to fill space? Boise DUI Lawyers and Boise Criminal Lawyers see a steady stream of DUI and felony charges in Boise and the reporting in the paper does not necessarily indicate an uptick in the number of DUI and felony charges in Boise.

In yesterday's paper, for example, it was reported that on Sunday a citizen reported that a car had hit a stop sign in Boise. After finding the vehicle police reported that a bag was thrown out of the passenger window. They later recovered the bag which contained a six-pack of beer, but the bottles had all broken. Because the police could not tell how many of the bottles were consumed or open in the car, the passenger with destruction of evidence. The driver was charged with DUI, eluding the police and a felony parole violation.

Boise Criminal Lawyers and Boise DUI Lawyers can tell you that it is often the case that when someone is arrested for DUI or on a criminal charge that they are charged with multiple charges. This sometimes is due to the nature of the crime. Drug possession and paraphernalia, for example often go hand in hand. Sometimes it is the case that the offender has already been in trouble and by participating in criminal activity they are getting themselves in deeper. Sometimes the police will charge both what they see as the actual crime as well as a lessor included crime. This prevents the case from being dismissed if only the lessor crime is charged and not the actual crime.

If you have been charged with a DUI or a crime in Idaho and you need to speak to a Boise DUI Lawyer or a Boise Criminal Lawyer, please call (208) 472-2383

Sunday, February 27, 2011

Boise Divorce Attorneys and Military Deployment

Boise Divorce Attorneys are often asked the question of what happens to custody and visitation when one parent is in the military and is deployed. There first concern tends to be that they will lose their visitation or custody rights established by the Idaho Court.

Military personnel are protected in a variety of ways in Idaho when it comes to divorce, custody and visitation. The policy behind this is that they are serving our country and defending us at home and therefore they should not have their rights compromised when they are deployed.

As a Boise Divorce Attorney I often suggest to my clients that if they are deployed that they execute a power of attorney and delegate their visitation rights to a party of their choosing. A power of attorney for a military visitation is good for three years. I suggest that the power of attorney be designated to someone like the grandparents or a new spouse, particularly if there are step-siblings with whom they would like their child to continue developing a relationship with.

Custody lawyers can present a motion to the court that custody be temporarily placed with the non-deployed party, with the understanding that once the other party returns from active duty that they will abide by the original custody and visitation schedule. This would be an option if the party felt like their visitation would be best placed with the other parent.

Using a power of attorney to delegate your visitation rights prevents the need for modification. This is not to say, however, that the party on the other side of the custody issue won't motion for modification and ask their lawyer to present evidence showing how it would be in the best interest of the child for them to remain with the non-deployed party while the other parent is deployed. In Idaho, however, Boise Divorce Attorneys can tell you the law will place a preference for the visitation rights of a military parent to be delegated through power of attorney.

As a custody lawyer in Boise, I have seen the use of these powers of attorney increase as active military personnel are repeatedly deployed. It is one option to help prevent a major disruption in the child's routine.

If you need to speak to a Boise Divorce Attorney, please call (208) 472-2383

Friday, February 25, 2011

Boise Divorce Attorneys and Mediation

Boise Divorce Attorneys will tell you that in most divorce cases in Idaho their clients are ordered to mediation. Judges in Boise routinely order mediation of outstanding custody and visitation issues. Boise Divorce Attorneys can also tell you that their clients often balk at having to attend mediation. There is a cost involved as well as time. Some parties are unhappy if the mediator is a woman, others are unhappy if the mediator is a man.

Many people see mediation as a hassle and unnecessary. Divorce lawyers, however, will tell you that mediation has its place in divorce and custody cases. Mediation can allow the parties to work out a custody and visitation schedule that works for them. If the parties can agree, and that is often the difficult part, they can decide for themselves who will have the child and when. If the parties do not come to an agreement during the mediation, their custody attorneys will argue each of their sides in court at trial. Each attorney will put forward why custody placed with their client is in the best interest of the child. The judge will listen to each lawyer and make a decision based upon a whole lot of evidence.

Now, while one party may "win", the question remains whether or not the court ordered visitation and custody schedule makes the best sense for the child and the parents. The standard alternating weekends and long summer vacation is not necessarily a convenient custody and visitation schedule. Or, you might find that alternating week on, week off is too disruptive.

Mediation may or may not work for you, but as a Boise Divorce Attorney I suggest to all my clients that they give it a good shot. It can be helpful and it most often makes the best sense for you and your ex to decide custody and visitation schedules instead of a judge. If the parties decide, there is often less need for modification because the decision is based upon their schedules not upon what the judge thinks will work.

If you need to speak with a Boise Divorce Attorney, please call (208) 472-2383

Wednesday, February 23, 2011

Boise DUI Lawyer Discusses Felony DUI and Personal Injury

Today's paper outlined a felony DUI accident which occurred in Boise on Tuesday. The driver blew a .224 and had a previous DUI in 2009. She was also cited for DWP. She was charged with a felony DUI because this is her second DUI within 5 years and she had a BAC of greater than .2. A BAC of .2 or greater is considered an excessive DUI. She undoubtedly lost her driving privileges as a result of her 2009 DUI conviction and, because she was driving on a suspended license, was charged also with a DWP.

What penalty is she potentially facing? A second time excessive DUI is a felony and carries a mandatory minimum of 30 days in jail but up to 5 years in prison. The person convicted of a felony DUI can also be fined up to $5,000 and be required to use a motor vehicle equipped with functioning ignition interlock system. In addition they must surrender their license and it will be suspended for a minimum of 1 year but no more than 5 years beginning upon their release from incarceration.

In addition to the DUI penalty she faces additional criminal penalties associated with the DWP. DWP carries a penalty of up to 6 months in jail, but with a mandatory minimum of 2 days, up to a $1,000 fine, and an additional license suspension of 6 months tacked onto the original suspension and beginning once the original suspension would have been ended.

This is a tough penalty but as a Boise lawyer I can tell you that if the driver she hit suffered a personal injury, in addition to felony criminal charges, she also could be sued for any personal injury surrounding the automobile accident.

Personal injury is a civil liability case but a Personal injury attorney can use the evidence of the DUI against the driver. Personal injury lawyers use evidence offered in DUI convictions to show that the automobile accident occurred as a result of DUI. The state's lawyers, the prosecuting attorneys, use the evidence collected by the police to convict a person of a DUI, whereas personal injury attorneys use the evidence to get a civil judgment.

Monday, February 21, 2011

Boise Divorce Attorneys and Evidence in Divorce and Custody Cases

Having practiced law in Idaho for almost 18 years as a Boise Divorce Attorney I have seen many trend changes in divorce and custody law. One example of this is evidence in divorce or custody trials. Although all evidence is based upon relevancy, any lawyer can tell you that where evidence comes from and what evidence is acceptable has changed.

Facebook has become a popular trend for social networking over the past few years. Facebook has also become a hotbed for divorce and custody evidence. People will post comments about their soon-to-be ex's, things they did to hurt them or the community, such as destroying or selling off property, or how they interfered with a custody transfer. Divorce lawyers can tell you that the courts in Idaho are allowing this in as credible evidence.

My caveat to you, as a Boise Divorce Attorney is to be careful about what you post on facebook. It could come back to haunt you.

If you are seeking a divorce or custody and need to speak to a Boise Divorce Attorney, please call (208) 472-2383.

Friday, February 18, 2011

Boise DUI Lawyers Keep Close Watch on Senate Bill 61

Changes in Idaho Law are on the horizon for Boise Criminal Lawyers and for those charged with DUI. Yesterday in Boise, the Idaho State Senate returned Senate Bill 61 to the Idaho House of Representatives. The Bill was proposed to amend Idaho Code 18-8002(4)(a) which outlines the penalty if an individual who refuses to take a breathalyzer test after a DUI stop. Currently the Idaho Code section states that if you are stopped on suspicion of a DUI and you refuse to blow the arresting officer is to immediately take your license and issue a temporary paper license. The temporary license is only valid until you have an administrative hearing about your refusal to blow on the DUI stop. If you fail to request the hearing or are found to be unjustified in your refusal to blow, your license is suspended by the Idaho Department of Transportation.

The amendment was proposed for administrative purposes. Currently, the arresting officer on a DUI must take the license, issues a paper license, get the license to the proper place to store the license and have the appropriate paper work so that the license can be returned at the appropriate time. This causes a questionable loophole if the officer fails to take the license at the time of the DUI stop as well as creates a license custody headache and unnecessary expense managing the actual physical suspended licenses. The amendment would remove the necessity of the arresting officer to take physical control of the actual license on a DUI stop. The person pulled over on suspicion of DUI would still have their license suspended but it would remove the administrative removal and subsequent paperwork involved.

The Senate Bill was returned to the House for clarification but it is likely to be passed in the next few days.

If you have been arrested on DUI charges and need to speak with a Boise DUI Lawyer, please call (208) 472-2383