Monday, April 14, 2014

Pre-nuptial Agreement, Necessary?

Nearly all property acquired by either party during the course of a marriage, regardless of whose name it is titled in, becomes marital property and is subject to equitable distribution by the Court. Additionally, the increase in value of any property owned by either party prior to the marriage is also marital property. So for example, if one party owns a house prior to marriage and then the divorce process begins ten years later any increase in the value of the house from the beginning of the marriage to the date of separation is marital property.

The only way to protect pre-marital property is with a pre-nuptial agreement, signed well in advance of the date of marriage. A pre-nuptial agreement can contain a variety of terms to protect both pre-marital and marital property and can set out the terms as to how a divorce should proceed if necessary.

The complication of children can have significant consequences on a pre-nuptial agreement and matters such as custody or child support often cannot be specified in such an agreement.

Thursday, April 10, 2014

Jurisdiction in divorce matters

The Jurisdiction where a divorce takes place can have a big effect on the ultimate cost of the overall action, as different counties and states have different costs associated with the filing and final disposition of the matter. Generally, if the parties are in agreement about the details of the divorce they can file anywhere they agree to. This may be advantageous if the parties are looking to save money on filing fees.

If the parties disagree about any part of the divorce then they would be limited to filing in either the jurisdiction where they were originally married, where the defendant resides, or where the parties resided together prior to separation. Consideration of where to file is an important part of the divorce process and should be consulted with a local attorney familiar with the local practices in that jurisdiction.

Tuesday, April 8, 2014

Real Estate Transactions

An excellent post over at the Pocono Title Insurance Blog - run by New Horizon Abstract Title Agent Erik Peterson. He makes the good point that an attorney is NOT required at the time of closing on a real estate transaction. Sophisticated purchasers would probably feel comfortable closing without an attorney, but anyone purchasing for the first time, and certainly commercial transactions should be guided by an attorney to provide additional peace of mind.

Thursday, April 3, 2014

Restitution as a result of a criminal offense

If there are damages to property or to a person as a result of a criminal offense the Court will impose restitution as a condition of sentencing. This means the criminal offender is responsible for paying the damages incurred. For example, if a DUI offender injures another person or damages another person's car in the commission of the crime, he or she will be held responsible for paying the costs to repair the car or for the person's medical treatment. 

This is separate from a personal injury lawsuit, in which punitive damages, or damages for pain and suffering can be recovered. Restitution is generally limited to the specific financial loss of the alleged victim. 

If a person is facing sentencing in a case in which restitution is a possibility he or she should hire an attorney to double check the costs. It is not uncommon for an alleged victim to inflate his or her costs in a restitution hearing and it should be checked for accuracy. The restitution hearing is the only chance to challenge the amounts claimed. Failure to pay restitution can result in additional criminal issues, not just a judgment as failure to pay a personal injury lawsuit. 

Restitution is not normally covered by insurance, but if the alleged victim has made a claim to the offender's insurance company that will usually be considered by the court. However, it is important to remember that issue must be raised at the hearing.