You got a speeding ticket, now what? – South Bend Traffic Lawyer

Posted on February 13, 2012 by jeffhaupt

The speeding ticket is the way that most people come in to touch with the legal system. Whether or not they choose to pay the ticket or set a court date to see what sort of options they may have, your ticket is part of the legal system. So what are your options when you get cited for speeding?

First thing to remember is that your speeding ticket is an infraction. What is an infraction? It is a civil penalty. This is not a criminal offense. Of course you cannot simply ignore it because it will lead to the possible suspension of your driver’s license if you choose not to pay the offense or take some other action to get the offense resolved. The criminal aspect only comes in if you are caught driving while your license is suspended (and that only happens after you have been previously caught driving while suspended).

Paying the Traffic Ticket

So with that being said, your first option is that you can simply call the Clerk of the Court and ask how much the ticket will be. The cost associated with the actual incident is pretty small, but you will have to pay court costs as part of the offense which is $115.50 in St. Joseph County, Indiana. Additionally, you will likely face higher insurance costs as well.

Setting the Traffic Ticket for a Court Date

You can ask to set the matter for a court date to try to explain the situation to the prosecutor’s office to see what they may be willing to do in terms of a plea bargain (this is what most attorneys will do, if not seek an outright dismissal of the infraction). This just means that they may be willing to exchange your moving violation for a non-moving violation. While the fine may be the same (and possibly a little bit more), you will be saved the worry of having points added to your license and also having your insurance company see a speeding ticket on your record.

In St. Joseph County, Indiana this has to be done within 30 to 40 days of receiving your ticket (the ticket will tell you how long you have to call and set a court date). You will need to go downtown to deal with the ticket in traffic court. Depending on when you arrive it could take you a couple of hours to complete the process.

One option that the Prosecutor’s Office may offer is Infraction Deferral. This program will cost more than just paying the ticket, but if you complete the requirements of the program the ticket will be removed from your driving record completely.

Setting the Traffic Ticket for Trial

The last option is that you can ask for a trial. This can be either a bench trial or a jury trial. While some people do attempt to do this, you have to balance the time demands that this will place on you for something that you can easily handle in another fashion. You also run the risk of being found guilty of the original infraction, meaning that you spent several court hearings and a trial trying to convince a judge or a jury that you did not commit the infraction, only to have to still pay the ticket.

The Law Office of Jeffery M. Haupt is located in South Bend, Indiana and helps people handle family law issues such as divorce, child support, paternity, and child custody, traffic offenses, and license suspensions; and financial matters such as Estate Planning and Foreclosure. The information in this blog should only be used for educational purposes and not be construed as legal advice. Nothing in this blog creates an attorney-client relationship between me and any readers of this blog. No attorney-client relationship is created until you have a document from me saying so. DO NOT POST ABOUT CASE PARTICULARS IN THE COMMENT SECTION.

South Bend Divorce Lawyer – Do I Really Need a Lawyer to Handle My Divorce?

Posted on January 22, 2012 by jeffhaupt

The other day I was in court waiting for my hearing to begin when a pro se couple was called to the bench. It is not that uncommon to see pro se litigants in a family law environment. Usually people seem to go sans divorce lawyer because of the perceived costs of a divorce lawyer. The couple in question seemed to have reached an agreement that they presented to the judge for her signature. The only problem is that their agreement stated that they had no property for the court to divide, but it was clear from their testimony that there was a marital estate worth about $250,000. Needless to say, the judge took the matter under advisement and strongly recommended that they talk to a divorce lawyer.

This brings me to the question of whether or not you really need a divorce lawyer to represent you in your case. The answer is yes and no (I know typical lawyer speak), but the reality is that it depends on the specifics of your divorce. If you truly have been married for about 10 months and there are no children and you live in an apartment you may be comfortable completing your divorce without a divorce lawyer. In a situation such as that when I have represented people, I typically don’t charge that much money as usually you are helping your client by drafting the Divorce Petition, filing the divorce, making sure all of their questions are answered, and helping them avoid any court appearances by filing the appropriate documents and agreements.

What about the case above? I am of the same opinion as the judge that by having a divorce lawyer the parties could have had an appropriate settlement agreement drafted and understood what it was they were doing. A divorce lawyer could have also helped them avoid going to court in the first place because the final agreement would have already been drafted and submitted to the court.

What if You Truly Don’t have the Money for a Divorce Lawyer?

Let’s be clear this question falls into two categories. The first would be truly not having the money and the second category is not wanting to spend the money. For most people if you walk outside and find your car has four flat tires that need to be replaced, most people will find a way to come up with the money to get this taken care of no matter how broke they may think they are. Legal matters, such as divorce, can be much more complicated and have a greater impact on your life than four flat tires, yet, some people choose to not have an a divorce lawyer and typically the answer as to why is the cost. Does that mean it’s a wise decision, probably not, especially, if you are dealing with the possibility of foreclosures, bankruptcy, retirement accounts, custody disputes, etc.

If you are in a situation where you truly cannot afford a divorce lawyer (think no income, unemployed, disabled), there may be some alternatives for you. First, Indiana law allows the possible award of attorney fees if there is a disparity of incomes between the two parties. You may be able to find a divorce lawyer who is willing to work on a smaller retainer (or other payment plan) because he or she recognizes that they may be able to get an attorney fee award from the other party. Another alternative is to seek the assistance of Indiana Legal Services. ILS offers representation to those who cannot truly afford a divorce lawyer. You may also be able to qualify for a pro bono attorney, to do that you should contact your local bar association for more information about pro bono programs in your area.

If you are just cautious about spending the money because you are not sure you need to or want to, contact a couple of divorce lawyers to just get a sense of what you may have to pay. This will also give you an idea of how complex your case may be.

We Agree on Everything Do We Still Need a Divorce Lawyer?

Like the case I cited to in the beginning of this post, even if you have an agreement, the judge may not sign off on the agreement if it is violation of the law or if he or she feels that there is an uneven distribution of assets and liabilities. Also, what is your agreement? Does it cover the possibilities of one person defaulting on debt or the other party filing for Bankruptcy and those creditors pursuing you. What about agreements on retirement accounts? Is it a pension, is the person fully vested, what type of pension is it? Does the plan manager accept QDRO’s? How do you avoid tax liability and tax penalties with the transfer of the fund from one person to another?

By having the right answer to the last question alone you can save more money than what a divorce lawyer would charge you to help you complete this agreement. Dividing the assets and the liabilities of a marriage is not always as easy as one person saying I want this and the other person saying fine, but I want this. There are legal issues that can become really complicated in terms of potential liability down the line and immediately getting to assets.

I Will Just Tell the Judge What I Want Out of My Divorce

Sure, some judges will give a pro se party greater flexibility to just “tell their side of the story.” But, what happens when you have a judge that is a stickler to trial procedure and the Rules of Evidence or the other person is represented and their divorce lawyer starts to object when you try to bring in emails, conversations that you have had with other people, or Facebook Wall Posts; how will you respond? Regardless of what has appeared on television in the last decade most family law courts in Indiana are still very formal (meaning the Rules of Evidence and Trial Procedure still govern) and many counties even have their own set of Local Rules that you must abide by.

Basically, you may never get to tell the judge your side of the story based on how the hearing is run and whether or not you understand what is happening. If it is a situation where there are some serious disputes such as custody, property, parenting time, etc., the divorce lawyer can help you present your case to the court in the best light possible to you. This way the judge will get the relevant information that he or she needs to hear to help decide disputed issues.

Before you consider handling your own divorce give my office a call or send us an email. We work with clients to help them be able to handle the costs associated with divorce in a more manageable way.

The Law Office of Jeffery M. Haupt is located in South Bend, Indiana and helps people handle family law issues such as divorce, child support, paternity, and child custody, criminal defense matters, DUIs, theft charges, and license suspensions; and financial matters such as Bankruptcy and Foreclosure. The information in this blog should only be used for educational purposes and not be construed as legal advice. Nothing in this blog creates an attorney-client relationship between me and any readers of this blog. No attorney-client relationship is created until you have a document from me saying so. DO NOT POST ABOUT CASE PARTICULARS IN THE COMMENT SECTION.

South Bend Divorce Lawyer – Changes to Indiana’s Divorce Filing Requirements Seem to Be Dead in Committee

Posted on January 19, 2012 by jeffhaupt

Recently, Indiana House Bill 1252 was introduced. The purpose of this bill was to change the requirements of filing for divorce if there are minor children of the marriage. Essentially, the bill would have forced parties to cooperate before they ever filed for divorce. The bill would have made it a requirement that neither party could file for divorce until 120 days have passed since the parties (both of them) had completed a “divorce education program.” If only one of the parents have completed the class then they must wait for a period of 300 days before they could file. Certainly there are exceptions in this bill, but it greatly changes Indiana’s relatively easy to meet divorce requirements.

This bill has not made it out of it’s first committee assignment, which at this point would mean that it is pretty much dead in the water, which in my opinion, is a good thing. I am certainly a supporter of parents working together for the benefit of the children while going through a divorce, the reality is that this bill would have created many different problems for those without the money to afford the divorce education requirement (or counties that would likely be forced to provide some of these services for those who cannot afford it).

The current divorce requirements are simply that you have to be a resident of Indiana for the last 6 months and a resident of the county where you are filing for the last 3 months.

You can read the bill here.

South Bend Divorce Attorney – Spousal Support in Indiana

Posted on January 18, 2012 by jeffhaupt

One of the questions that comes up repeatedly in a divorce consultation is whether or not my potential client will receive or will have to pay spousal support. Most people tend to refer to this as alimony, but “technically” Indiana does not allow for alimony and has only carved out a few narrow exceptions as to when a Court has the ability to award spousal support, which I have previously addressed before.

The one wild card in terms of receiving spousal support is how it relates to a spouse with disabilities. Recently, the Indiana Court of Appeals has addressed the issue in two separate cases. In Pala v. Loubser, 943 N.E.2d 400 (Ind. Ct. App. 2011), the Court of Appeals addressed what I consider a pretty straight forward case of incapacity related spousal support. In Pala, the ex-husband, who is an achondroplastic dwarf, was awarded a spousal maintenance amount of $1,200 a month this amount was based on his inability to earn and his ex-wife’s income. Approximately, eight years later the ex-wife moved to modify the spousal support award on the grounds that the husband’s financial position had improved.

The trial court had found that to be the case as the disabled husband had received increases in his social security disability amounts, was making money on rental properties and had approximately $50,000 worth of cash available to him. Given this information the spousal support award was terminated, and the Court of Appeals did not find error with the trial court’s ruling. The Court of Appeals also supported this conclusion by looking to the fact that the parties were married only seven years before they divorced and that eight years had elapsed since the dissolution of marriage.

The Pala case is illustrative of the fact that incapacity spousal maintenance awards are not always an indefinite award. The facts of each case are going to be reviewed by the trial court and the court will recognize the fact that people’s circumstances often change, and such awards are modifiable (unless agreed to otherwise in a property settlement agreement).

The second case, Clokey v. Clokey, 956 N.E.2d 714 (Ind. Ct. App. 2011), involves a situation where the wife was disabled at the time of the marriage and that husband admitted he was aware of the disability and recognized that he would have to care for her. The more shocking issue in this case involved the monthly award of spousal maintenance and the fact that there was some relatively bad behavior on the husband’s part in regards to how he dispersed of the majority of the marital assets. This behavior is probably what led to the award of a $2,000 per month spousal support order to the wife.

If you have questions about receiving or modifying spousal support, contact my law office today.

Indiana Child Support Emancipation – Is a Change Coming to the Emancipation Age?

Posted on January 16, 2012 by jeffhaupt

While there have been discussions in the past to change the age of emancipation in Indiana (as we are one of only two states with a 21 year old emancipation age) it seems like there is actually some movement this year on getting the number changed to 19. This would put Indiana in line with the majority of states. In addition, the current bill would still leave intact the ability for a Court to award college expenses.

This change would save on a great deal of litigation over whether or not a child is truly capable of supporting him or herself, as currently required by the emancipation statute for a parent seeking to stop paying child support before the child turns 21. Yet, it still protects those children who are going to pursue additional education by allowing for the award of a college expense order.

You can read the currently proposed Senate Bill Number 18 here.

South Bend Child Support Lawyer – Revisiting the Meaning of Contempt for Not Paying Child Support

Posted on January 13, 2012 by jeffhaupt

For the most part, debtor’s prisons have been eliminated in the United States. The one exception to this general rule is in the area of enforcing a child support order. A non-custodial parent who has a Court Ordered child support obligation runs the risk of being incarcerated (or coerced) into paying child support if he or she willingly refuses to pay. The Indiana Supreme Court has summed it up nicely by saying:

A child support order is enforceable by contempt only if the parent has the financial ability to pay the support due and his or her failure to pay is willful. Pettit v. Pettit, 626 N.E.2d 444, 447-48 (Ind. 1993)

So by this definition it would appear that if you are looking for work, making the majority of a weekly child support obligation payment, you would not run the risk of being found in contempt. Well, the Indiana Court of Appeals would at least agree with you.

In the case In re G.B.H., 945 N.E.2d 753 (Ind. Ct. App. 2011), the Court of Appeals had overturned a lower court’s ruling that a father was in contempt for non-payment of child support. Essentially, the father was paying the majority of his court ordered child support payments out of his unemployment and attempting to make up the short-fall by doing odd jobs until he could find full-time employment.

He fell behind by $2 per week when he was found to be in Contempt for failing to pay child support.

The Court of Appeals found that the Contempt finding was a stretch as the non-custodial parent was presenting evidence at various court hearings to show that he was attempting to find work, was working a variety of odd jobs to try to make up some of the arrearage payments, and his unemployment was covering all but $2 of the Court Ordered Child Support amount.

South Bend Criminal Defense Lawyer – Public Intoxication Charge Even When Being Responsible?

Posted on January 13, 2012 by jeffhaupt

This past year, the Indiana Supreme Court upheld a woman’s conviction for public intoxication in Moore v. State, 949 N.E.2d 343 (Ind. 2011). The facts behind this case are interesting and also sobering (pun intended).

Barbara Moore, the Defendant, was apparently rather intoxicated after a night out for drinks. She seemingly did the responsible thing and that was to have someone else driver her car instead of driving while intoxicated. The car was pulled over for having a license plate light out. When the officer realized that the driver had no valid license he talked to the Defendant about being able to drive, to which she admitted that she was too drunk to drive and that is why someone else was driving. At which point she was arrested for public intoxication.

There was nothing in dispute about the evidence that was raised on the appeal to the Supreme Court, but rather two interesting arguments. First, that her conviction violated public policy. Essentially, the argument is that she did the right thing, by not driving while intoxicated. The Supreme Court didn’t buy it, specifically stating:

Whether conduct proscribed by a criminal law should be excused under certain circumstances on grounds of public policy is a matter for legislative evaluation and statutory revision if appropriate. The judicial function is to apply the laws as enacted by the legislature.

Her second argument was even less impressive to the Court. Here she raised the fact that the conviction violated her right to consume alcoholic beverages. Not so, said the Court. She was free to choose whichever beverage she wished, but the moment she was in a public place she became subject to the laws governing public intoxication.

South Bend Bankruptcy Attorney – Your Tax Refund and Bankruptcy

Posted on January 12, 2012 by jeffhaupt

It’s that time of year again. The time of year when many people are expecting an influx of cash in the form of a tax refund. Normally, for many people receiving a refund this is a welcomed event. If you are filing Bankruptcy and don’t plan appropriately then you could be at risk of losing the tax refund to your creditors, as your tax refund will be considered an asset by the Bankruptcy Trustee.

Why is My Tax Return Part of My Bankruptcy Estate?

Your tax return is income (in most cases). Basically, when you get a tax refund from this represents the fact that you have overpaid (from your income) your tax liability. The Bankruptcy Trustee’s goal is to try to find assets to pay your creditors and nothing is easier to find and obtain than a tax refund.

Can I Keep Any Part of My Tax Refund if I File For Bankruptcy?

Indiana law allows for certain exemptions when filing for Bankruptcy. One of those exemptions relates to portions of your tax return that is tied to the Earned Income Credit. So if a good deal of your income tax refund is related to the Earned Income Credit, you can protect it from becoming part of the Bankruptcy Estate.

When you file Bankruptcy you are also allowed to keep a certain amount of money in a checking and/or savings account. This amount is not that high, but it still can protect a few hundred dollars of a single filer’s tax refund or a few hundred more for a joint income tax refund.

What Happens if I Spend My Tax Refund and Then File Bankruptcy?

It really depends. Did you go on a cruise or buy a new motorcycle with the tax refund? Chances are the Bankruptcy Trustee would have a problem with these luxury purchases. If you used the money for normal day to day living expenses, such as mortgage payments or rent payments, groceries, medical and dental needs, car repairs and maintenance, clothing, etc. What I typically advise my clients to do is to keep track of what you have spent the money on.

It is always best to talk to a Bankruptcy Lawyer about how your tax refund will be viewed by the Bankruptcy Trustee and whether you can exempt any portion of the tax refund.

We are a debt relief agency, we help people file for Bankruptcy.

South Bend DUI Lawyer – Understanding Different OWI Charges Under Indiana Law

Posted on January 11, 2012 by jeffhaupt

Law Office of Jeffery M Haupt As you may or may not be aware, Driving Under the Influence is referred to as Operating While Intoxicated under Indiana law. It is the same thing, just a different name. The real confusion for most people comes in when trying to understand how and why is a particular OWI charged a certain way. OWI charges can range from a Class C Misdemeanor up to a possible Class B Felony depending on the facts of an individual case. Below is an explanation of the ranges of possible charges involving operating a motor vehicle while intoxicated.

Class C Misdemeanor DUI/OWI

Essentially, this is your first DUI or OWI offense and the breathalyzer doesn’t register a number greater than or equal to .15. This is also a situation where your DUI or OWI offense doesn’t endanger another person. This is the lowest level of DUI classification in the State of Indiana and will also generally lead to the lowest level of possible penalties.

Class A Misdemeanor DUI/OWI

You can be charged with a Class A Misdemeanor OWI under a few different circumstances. First, as alluded to above, if you endanger another person while driving in an intoxicated state, you can be charged with a Class A Misdemeanor. What does endangering another person mean? It’s actually a pretty lose definition, your DUI Attorney will be able to work with the charge to determine whether there is truly any merit to the charge.

The next way that you can be charged with a Class A Misdemeanor OWI is by having a breathalyzer test show an alcohol concentration greater than or equal to .15. This actually means you are pretty intoxicated while you are driving, so that is why there is the enhanced penalty.

Class D Felony DUI/OWI

To get a Felony DUI or OWI charge you are usually looking at a situation where you have had prior convictions for driving under the influence that lead to a habitual traffic violation offense or a situation where there was an accident involving an injury to another person as a result of operating a vehicle while intoxicated. Specifically, Indiana law also allows for a Class D Felony filing if you have a prior conviction and you have a passenger in the car that is under the age of 18.

There is also the possibility that you can be charged with a Class D Felony for killing a law enforcement animal as the result of your operating while intoxicated.

Class C Felony DUI/OWI

To be charged with a Class C Felony DUI/OWI, the person being charged has typically caused an accident that resulted in a death. You do not have to be seriously intoxicated to be charged with a Class C Felony if the operating while intoxicated lead to an accident that resulted in death. Specifically, your blood alcohol level only needs to be between the levels of .08 and .14.

Class B Felony DUI/OWI

A Class B Felony DUI/OWI is an enhancement charge of other charges already mentioned above. For instance, if you are driving under the influence and there is an accident resulting in a death, then you could be looking at a Class B Felony if your blood alcohol level is equal to or greater than .15. Or, if you have had a prior conviction for driving while intoxicated and you cause an accident resulting in death, then your blood alcohol level only needs to be .08 for the charge to be a Class B Felony.

Facing a DUI/OWI case is not something that you should take lightly. With all of the possible charging ranges and the issues that can impact your driving privileges, it is in your best interest to consult with a DUI Lawyer.

South Bend Bankruptcy Lawyer – What to Expect from a Chapter 7 Bankruptcy

Posted on January 10, 2012 by jeffhaupt

If you are experiencing financial difficulties you may be thinking about whether you should file for Bankruptcy or not. There are many myths and rumors about Bankruptcy and honestly the best way to get an understanding of whether Bankruptcy is right for you is to talk with a Bankruptcy Attorney about the specifics of your case. But, in an attempt to provide some basic understanding of what to expect when it comes to filing for a Chapter 7 Bankruptcy, I’ve prepared this quick overview.

Will I Lose Everything if I File a Chapter 7 Bankruptcy?

This is a common question that gets asked a lot. The truth is that you may be forced to give up some assets if you have any. For most people that contemplate filing a Chapter 7 Bankruptcy you will be given the ability to exempt certain property. An exemption is the chance for you to hang on to something. This something could be a car, jewelry, equity in a home, personal items, etc. What the exemptions protect varies from State to State, but for most people faced with the idea of filing a Chapter 7 Bankruptcy, they should be able to keep a good amount of what they own.

What if I Still Owe Money on My Car? Can I Keep it Even if I am Filing Bankruptcy?

Chances are you could still keep a car that you are making payments on if you are willing to sign a reaffirmation agreement with your lender. The reaffirmation agreement allows you to continue making payments on your car and essentially make an agreement that you will pay this debt even though you are filing Bankruptcy. Is this a good idea? It depends…If you owe a lot and the payments are extremely high, then you may want to strongly consider surrendering the car in the Bankruptcy, but in a situation where you may have the car almost paid off, then a reaffirmation agreement might not be such a bad thing. In this situation it is best to consider your individual circumstances when consulting with a Bankruptcy Attorney.

My Credit Score Will be Ruined if I File Bankruptcy!

It is true that a Bankruptcy filing will have a negative impact on your “credit score,” but the reality for most people is that you have likely reached a point where you may have several judgments against you from creditors, possible foreclosure, liens, garnishments, etc. All of these items have a negative impact on your credit score. So if you are in a situation where you have many delinquent debts then your credit score is probably already pretty low. The Bankruptcy process is more geared at giving you a fresh start or relieving you from the burden of crushing debt.

How Long Does it Take to Get Through a Bankruptcy?

It can vary, but for the most part the meeting of creditors will happen sometime within four (4) to eight (8) weeks from the time you first file the Bankruptcy petition. Once the Meeting of Creditors (or Section 341) meeting occurs, then you can expect your discharge a few months after that, assuming there are no problems.

What is the Meeting of Creditors?

It is a chance for your creditors to ask you about your assets, liabilities, property transfers, etc. More often than not, creditors do not show up to the Section 341 meeting. Realistically, the time is used by the Bankruptcy Trustee to ask you questions about your liabilities and assets.

These are just some of the basics of Bankruptcy to give you an idea of some of the things to think about when contemplating what will happen during the Bankruptcy process. If you have more questions (and your are in the Northern District of Indiana) please feel free to give my office a call.