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October 2015 Archives

How Are Divorce Attorneys Paid?

Nearly all divorce attorneys are paid on an hourly basis.  The attorney should spell out the process, initial retainer and anticipated costs in the initial consultation.  Some attorneys offer a free initial consultation; but be sure to ask before assuming this to be the case.  I, and many other busy lawyers, do NOT offer free consultations beyond the first phone call.  If you want to sit down and discuss your case, you will undoubtedly receive advice and discuss various ways to handle your case.  An attorney-client relationship is established, which would likely preclude representation of your spouse.  As such, I do charge for my time. There may also be some fixed fee cases, but those are generally limited to truly uncontested and simple divorces without asset division. A retainer is a set amount of up front money.  Retainer agreements do differ, some are refundable, others must be replenished and some are non-refundable.  If you do not understand, be sure to ask.  A retainer is often a good faith down payment on services to be rendered.  Almost all attorneys requires some form of a retainer.  Unfortunately, many clients are less apt to pay legal fees after the case is over and more willing to pay before the case begins or when issues are in litigation.   Nearly all attorneys will have clients sign a Fee Agreement.  This should outline all costs and responsibilities of the client and the attorney.  In addition to the retainer, often additional fees and costs may be required and are paid by the client. These fees for divorce often include: filing fees, service fees, warning order attorneys, guardian ad litem, mediation costs and fees, and costs for depositions including court reporters.  There are also often additional fees for QDRO preparation and division, preparation of Deeds and transfer of specific assets.  There are times when the fees may even exceed the legal costs.  All fees are not incurred in every case, so clients should discuss which fees may be applicable in the individual case. Generally, fees can be paid by check, cash, and any debit or credit cards.  Other arrangements may be made on an individual basis. If you have questions or concerns, ask your attorney. For a consultation in Northern Kentucky, call Michael Bouldin at 859-581-6453 or email at [email protected].

What To Do If You Are Arrested

If you are arrested, it is generally suggested to exercise your rights.  If you go to court before obtaining an attorney, plead not guilty and ask the judge for a reasonable bond.  You are entitled to have charges read to you and appear before a judge within 2 business days of your arrest. 1. Exercise the right to remain silent.  You should answer general questions about yourself, including your name, dob, ss#, address and employment.  This will help you to obtain a reasonable bond.  You should NOT answer any questions relating to the allegations unless you first speak with an attorney.  Remember, anything you say can and will be held against you. 2. Exercise your right to an attorney.  Tell the officer/investigator that you wish to speak to an attorney.  Then hire a criminal defense attorney.  If you cannot afford an attorney, request a public defender.  This must be done by asking a judge and defendants are generally required to fill out an affidavit showing proof that the defendant is indigent. Your attorney will explain your additional rights, including: 3. Right to confront and cross examine all witnesses who will testify against you.  Additionally, you have the right to see all evidence that they intend to provide.  This includes witness statements, forensic evidence, video evidence, lab tests as well as exculpatory evidence which the state may possess that would tend to show that you are not guilty of the offense.   4. Right to trial, by jury. 5. Right for the state/commonwealth to prove you guilty beyond a reasonable doubt. 6. Right to produce evidence you may have to prove your innocence. 7. Right to reasonable bail while awaiting trial.  This may be tricky and varies based on the charges, risk of flight and risk of danger to the community. 8. Right to appeal a conviction. If you are charged with a crime, contact an attorney.  For a consultation in Boone, Campbell, Kenton or Hamilton County, call Michael Bouldin at 859-491-2206 or email to [email protected].

To Blow or Not To Blow?

That is the question. . . most often asked to a criminal defense and DUI attorney. Once an individual has been arrested for suspected DUI, DWI or OVI, they are almost always read their rights, implied consent warning and asked to submit to a sample of breath (breathalyzer) or blood test.  While some attorneys advise to always refuse a breathalyzer, I do not agree that the answer is that simple. One problem is that if you refuse to take the breathalyzer in Kentucky, the Court will suspend your license for 120 days.  This can continue regardless of whether you are convicted or acquitted of the underlying DUI. This is an administrative suspension based solely on the refusal of the breathalyzer or other alcohol test. Another consideration is that the refusal can be used against you in a trial as indicia of impairment. If a driver has actually consumed only a small amount of alcohol, the breathalyzer may actually benefit him/her in proving that the alcohol concentration was under the legal limit.  An individual with an alcohol concentration of less than .05 is presumed to not be under the influence. There are complex formulas to determine what a blood alcohol level may be and they are based on the person's sex, weight, amount of alcohol consumed and length of time during consumption. The following link is interesting and fairly accurate in predicting what a blood alcohol level may be. Additionally, the food that the person has ingested will affect the blood alcohol level. The defendant should also be aware that if you blow over a .15, then the case is considered aggravated, which mandates jail time even for a first offense. A refusal is considered an aggravator for second or subsequent offenses, but not for first offense DUI. Therefore, if a driver has consumed large amounts of alcohol and does not have a prior DUI conviction, it is suggested to refuse the breathalyzer. The police in Kentucky may request either a breath test, blood test or urine test. The breathalyzer is requested most often because of its ease of use, time required to take the test and number of people necessary to have the results entered as evidence in a trial. The police will generally only request a blood test if the driver is suspected of using other drugs or a combination of drugs and alcohol. Defendants should be aware that they have the right to a second test of their choosing once they submit to the test requested by the police officer.  I often suggest that if you blow over the limit on a breathalyzer to request a blood test be taken. This is at your expense and is generally done at a local hospital. If you have been arrested and charged with DUI, you should contact an attorney before next appearing in court. Whether you have submitted to a breathalyzer or refused to consent to a breathalyzer, an attorney can assist you through the legal process. In certain cases, a defendant can be acquitted regardless of the breathalyzer result or the refusal. If you have questions or concerns, contact Michael Bouldin for a consultation at 859-581-6453 (581-MIKE) or email at [email protected] .  

What is Uncontested Divorce?

Many clients want a simple, uncontested divorce.  While this may be the intent of the client and the spouse, most also want what they want and are not willing to give in on a specific issue or issues.  For example, both parties may want the divorce to be simple, sharing custody of the children.  That said, one spouse may think sharing is 50/50 time and no child support while the other thinks that every other weekend and Tuesday nights is sufficient, and also expects to receive full child support pursuant to the Kentucky guidelines. If the case is truly non-contested, the parties would agree on the issues of legal custody, division of time and support for the child(ren).  Support may take the form of traditional child support, or may be a division of expenses.  Division of expenses should be specifically spelled out what is included and/or what is excluded from that to be divided.  Also, the parties should decide whether it is an equal (50/50) division of expenses or if some other division; often pursuant to percentage of total earnings. Other areas of which the parties need to agree for an uncontested divorce/dissolution include: division of assets, payment of temporary bills, division of debts and how to remove the other from responsibility, division of real estate and refinance concerns, premarital and other non-marital assets and how to restore those assets, division of retirement, pension and other accounts, and spousal support (if any).   Many lawyers will allow for a fixed fee for a truly uncontested case.  This fixed fee will generally include (1) Petition for Dissolution; (2) Entry of Appearance; and (3) Dissolution Settlement Agreement.  It will not include negotiations or mediation regarding the division, nor court appearances to determine temporary or permanent issues.  It will also likely include the Findings of Facts and Conclusions of Law as well as a Decree to finalize the case. Often excluded from fixed fee arrangements are Quit Claim Deeds for transfer of real estate and QDRO for division of retirement plans. If you have questions about divorce or dissolution and whether you may be able to proceed with an uncontested case, call Michael Bouldin at 859-8106453 or email at [email protected].  Call 581-MIKE.

How Do I Expunge Misdemeanors?

It is possible to expunge many misdemeanors in Kentucky.  The law allows for dismissals and acquittals to be expunged 60 days after the final entry.  If there is a conviction, the case cannot be expunged until 5 years after conviction, or 5 years after the termination of any term of probation or conditionally discharged time.  This may extend the waiting period to 6 or 7 years, since probated time is typically for a 2 year term. KRS 431. 076, 431.078 and 431.079 provides for expungement.  The form for expungement of a conviction can be found at this link.  The form for expungement of an acquittal or dismissal can be found at this link.  This is a starting point.  In order to expunge most charges, you also need to request a criminal history.  There is a fee to obtain this document from the Administrative Office of the Courts, and additional fee to have the document proofed and checked off by the Kentucky State Police.  This is another necessary step to expunge most cases. Special care should be given to assure that all agencies are notified in order to completely remove and expunge the case.  If left blank, most county clerks will expunge the case record from their system.  This leaves out expungement by Kentucky State Police, FBI, NCIC, AOC, county prosecutor, detention center, online systems such as JailTracker and Mugshots and the arresting/citing agency such as state, county or city police.  If the case was charged originally as a felony, there is also the Commonwealth's attorney and both district and circuit court which should be notified. Often, it is worth the additional money to pay an attorney to file for the expungement.  An experienced criminal defense attorney will assure that all appropriate agencies are notified, the paperwork is filed correctly and the procedures are followed. Some counties also require court appearance.  For example, in Boone County the attorney may also appear on your behalf to assure the expungement is finalized and processed. If you have questions about your eligibility to expunge a criminal charge or approximate costs involved, contact an attorney.  For help in Northern Kentucky, call Michael Bouldin at 859-581-6453 or email at [email protected].

Is Maintenance Taxable?

In Kentucky, the maintenance is the legal term used to indicate alimony or spousal support.  As an attorney who practices in Ohio and Kentucky, I often use the terms interchangeably, however the proper term in Kentucky is maintenance.  In generally, maintenance IS taxable to the party receiving and is tax deductible to the payor.  This is sometime confusing when temporary maintenance is put in place while the parties are still married. For example, if the parties separate on October 1st and they are not divorced by the end of the calendar year, they will be required to either file taxes for that given year as married, filing separately or jointly.  If they file jointly, any payments of maintenance will not matter for tax purposes.  If they file separately, the maintenance may be included.  Often times for very short periods the parties may agree to some "family support."  Family support is often considered or the term is used to describe a blend of child support and spousal support.  Parties should consult with their attorneys, and attempt to clarify in writing, to avoid IRS disqualification of a deduction.  By contrast, child support is never taxable or tax deductible. When determining amount of spousal support, the tax implications should be taken into consideration.  Many times the parties can actually save the total money paid to the government by careful planning of maintenance payments.  For example, if a husband is in the 34% tax bracket and the Wife is without income, the first $15,000 of annual payments are virtually tax free. The husband will deduct the total payments, thereby reducing his taxable income by $15,000 and saving 34%, or $5,100 from his tax obligation.  The Wife will be in a zero tax bracket, thereby not having taxable income.  Greater amounts to Wife will be taxed at her lower tax rate, also increasing the "family" tax obligation. It is important to know your terms and tax implications when resolving temporary and permanent child and spousal support terms.  Your attorney should make you aware of these tax implications, but a CPA or other tax expert may be essential to consult prior to final resolution.  For a consultation regarding divorce or dissolution in Northern Kentucky, call Michael at Bouldin Law Firm at 859-581-6453 or email at [email protected].  Call 581-MIKE.

What is Sodomy?

Sodomy is a crime in Kentucky and throughout the nation.  In Kentucky, it is defined by KRS 510.070 under two circumstances

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