Divorce in America is governed by the laws of the individual state in which it occurs. Divorce, also known as "dissolution of marriage," is a legal process in which a judge or other authority legally terminates a marriage, restoring them to the status of being single and permitting them to marry other individuals. Divorce proceedings also include matters of spousal support, child custody, child support, distribution of property and division of debt. Divorce laws vary from state to state. While divorcing spouses once were required to show a reason for the dissolution of the marriage by assigning fault to one of the parties (like adultery, sterility, abandonment, insanity, or imprisonment), every state now allows for "no fault" divorces (usually on the basis of "irreconcilable differences"). Nevertheless, many states still allow their courts to take into account the behavior of the parties when dividing property and debts, evaluating child custody issues, and determining child and spousal support. Similarly, some states require a period of separation prior to divorce (some also require therapy), and this has led to the creation of another category of relationship called "separation."
For purposes of distributing assets after a divorce, courts divide property under one of two basic schemes: community property or equitable distribution. In community property states, both the husband and wife equally own all money earned by either one of them, regardless of which spouse acquired it, from the beginning of the marriage until the date of separation. Similarly, all property acquired during the marriage with community money is deemed to be owned equally by both spouses. Community property is generally divided equally between the spouses, and each spouse keeps keeps his or her individually owned property (usually premarital assets).
With equitable distribution, on the other hand, assets and earnings accumulated during marriage are divided fairly, but not necessarily equally. The court may consider such factors as the respective spouses' substantial contribution to the accumulation of the property, the market and emotional value of the assets, tax and other economic consequences of the distribution, the parties' needs, and any other factor relevant to fairness and equity. Alimony payments, child support obligations, and all other property will be considered as part of the equitable distribution.
The terms of a divorce are usually determined by a court, though they may take into account antenuptial agreements (also called "prenuptial agreements") or postnuptial agreements. Courts may also allow the parties to agree privately to terms for the divorce, subject to the court's final approval. Such agreements are often reached after mediation or other forms of alternative dispute resolution. If the spouses are able to agree to the terms of the final divorce prior to filing, it is often called an "uncontested divorce." Uncontested divorces are usually much less expensive, much more amicable, and much quicker than disputed divorce cases.
In cases involving children, states have a significant public interest in ensuring that the children are adequately provided for, and that they are in the custody of a parent or guardian who will provide a stable and supportive home environment. All states now require parents to file a parenting plan or to decide on custody and visitation, either by reaching a written agreement or in a court hearing, when they legally separate or divorce.
Divorce law deals with the legal proceeding governed by state law that terminates a marriage relationship, requiring a petition, or complaint for divorce or dissolution by one of the parties. Once a divorce is final, parties to a divorce are free to remarry. Grounds for divorce vary by state statutes. Some states still require a minimal showing of fault, but no-fault divorce is now the rule, with some states allowing divorce based on fault and no-fault grounds. Only state courts have jurisdiction over divorces, so the petitioning or complaining party can only file in the state in which he/she is and has been a resident for a period of time. In most states the period from original filing for divorce, serving the petition on the other party and final judgment, or decree, takes several months to allow for a chance of reconciliation.
A fault divorce is one in which one party blames the other for the failure of the marriage by citing marital misconduct or other statutory cause for judicial termination. Fault divorces are most common where abuse is a factor. Abandonment, desertion, inability to engage in sexual intercourse, insanity, and imprisonment are other causes for fault divorces. In many states, the waiting period is shorter for fault divorces. In states that do allow fault divorces, the spouse who proves the other's fault might receive a larger share of the marital property or more alimony.
No fault divorce is where neither spouse is required to prove fault or marital misconduct on the part of the other and one party must simply state a reason for the divorce that is recognized by the state, such as incompatibility, irreconcilable differences, or irretrievably broken. In some states, a couple must first live apart for several months before they can obtain a no-fault divorce. No Fault divorces are the most common type of divorce.
An uncontested divorce is a proceeding in which a person sued for divorce does not fight it and instead reaches an agreement with the spouse during the proceedings. In these cases, the terms of the divorce are agreed upon by both parties. Uncontested divorces are generally much more amicable and economical than other types of divorce.
The possible issues needed to be addressed in divorces include: division of property and payment of debts, child custody and support, maintenance (spousal support), child visitation and attorney's fees.
For purposes of distributing assets after a divorce, courts divide property under one of two basic schemes: community property or equitable distribution. In community property states both the husband and wife equally own all money earned by either one of them from the beginning of the marriage until the date of separation. In addition, all property acquired during the marriage with community money is deemed to be owned equally by both the wife and husband, regardless of who purchased it. Community property is generally divided equally between the spouses, while each spouse keeps his or her separate property. With equitable distribution, assets and earnings accumulated during marriage are divided fairly, but not necessarily equally.
Child custody is the privilege and duty to control, care for, supervise and educate your minor child.
Physical custody refers to the routine daily care and control and the residence of the child. In sole custody arrangements, one parent takes care of the child the majority of the time and makes major decisions about the child. In joint physical custody arrangements both parents share in caring for the child.
Legal custody means the right to determine the child's upbringing, including education, health care and religious training. Joint legal custody means that both parents have equal rights and responsibilities, including the right to participate in major decisions determining the child's upbringing.
When the parents cannot come to an agreement regarding custody and parenting time with their child, the court must do so. The court bases its decisions on custody and visitation arrangements on the best interests of the child, using various criteria.
Child support is court-ordered payment by one parent to the custodial parent of a minor child after divorce or separation as a contribution to the costs of raising a child. This is a provision to ensure that the child should receive equal support from both parents which he/she would have received had there been no divorce.
All states have set guidelines to determine child support. These guidelines use different formulas based upon the income of either or both parents, the number of children, and various other relevant factors. There are typically three basic child support calculation models used: The Income Shares Model; the Percentage of Income model (either flat percentage or varying percentage), and the Melson Formula model.
Criminal Defense Law
Criminal defense law consists of the legal protections afforded to people who have been accused of committing a crime. Law enforcement agencies and government prosecutors have extensive resources at their disposal. Without adequate protections for the accused, the balance of power within the justice system would become skewed in favor of the government. As it is, fair treatment for criminal defendants often depends as much upon the skill of their defense attorney as it does the substantive protections contained in the law.
Defense attorneys know how to use constitutional guarantees to the advantage of their clients. For example, all criminal prosecutions are based upon evidence gathered by the government. This may include physical items of evidence, witness statements, confessions, drug and alcohol tests, and so forth. The Forth Amendment to the U.S. Constitution (applicable to the states through the 14th Amendment) prohibits the police from using unreasonable searches and seizures to gather evidence. If they do, a defense attorney will ask the court to suppress that evidence so it cannot be used at trial.
The Constitution provides many more protections that apply to the field of criminal defense law. Someone who has been tried and acquitted of a crime cannot again be charged with that office, as mandated by the "double jeopardy" provision of the Fifth Amendment. The Sixth Amendment guarantees criminal defendants the right to a public trial, and in many cases, the right to have their guilt or innocence decided by a jury. It also affords the right to confront adverse witnesses, and to use the court's subpoena power to compel the appearance of favorable witnesses.
DUI / OVI
Driving Under the Influence (DUI) law, also referred to as Driving While Intoxicated (DWI) law, refers to state statutes and municipal ordinances that make it illegal to operate a motor vehicle after consuming a specified amount of alcohol. These cases are criminal in nature, although they can involve civil penalties, such as a suspension of driving privileges. DUI laws often include prohibitions against driving under the influence of controlled substances as well.
Most states prosecute drunk driving in three ways. First, a conviction can be based on the amount of alcohol in the defendant's blood, as measured immediately following the arrest. The legal limit in all states is currently .08%, with lower limits for commercial drivers and minors. This type of prosecution is called a "per se" DUI. It requires only that the state prove that a blood alcohol content test was administered, and that the result exceeded the legal limit.
The second type of DUI prosecution occurs when the defendant's blood alcohol content is not available, or does not exceed the legal limit. In such cases the state must prove that the driver consumed alcohol to a degree that rendered him or her unsafe behind the wheel. This is a more difficult burden for the state to meet. At trial, the state will try to prove its case using officer testimony, witness statements, field sobriety test results, and audio/video recordings.
A third, less common method of prosecution requires the state to show the defendant was in "actual physical control" of the vehicle. This can be proven with blood alcohol readings or other evidence, but unlike other prosecutions, the defendant need not have driven. A conviction can result based only on the fact that the defendant exercised control over the vehicle. Usually, this means sitting in the driver's seat with possession of the keys.
In addition to jail time, fines, alcohol classes, and other penalties, those arrested for DUI or DWI also face suspension of their driver's license. In most jurisdictions, a suspension will result either from a conviction, or for failing a blood alcohol test (even if the defendant is acquitted or charges are reduced). The same constitutional protections that exist in criminal court do not apply here, making it especially important to hire an attorney to handle the matter.
A Will, or Testament, sometimes referred to as a Last Will and Testament, is a legal document declaring a decedent's intentions for who should manage his or her estate after death, and to whom he or she wishes various assets to be given.