You Need a Will – South Bend Estate Planning Lawyer

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You have heard it from many different sources and many different people. You need to have a will.

Some of the more common reasons for a will:

Have control over who will be your heirs. By choosing your heirs you can decide who will receive your property.  This keeps the court system and Indiana statutes from distributing your assets after a long and costly court battle.

Have control over who will not be your heir. Maybe it is not necessarily an issue of you leaving someone out of the will just to be mean spirited, but there could be reasons for leaving out a child, for instance one child may be well-to-do, while his or her sibling could have extreme special needs that will require more support.

Have control over who raises your heirs. By drafting documents that will provide for a caretaker for your minor children you can control who will fulfill this role instead of the court having complete discretion.

Have control through the establishment of a trust for your minor children. By establishing a trust for the minor child you can be assured that the property you leave them will be managed for their benefit without costly, court-administered guardianships.

There are many reasons why the development of estate documents can be valuable and save you and your family money and trouble in the future.  For a better understanding of how to protect your estate, contact my law office today at (574) 387-6529.

The Law Office of Jeffery M. Haupt is located in South Bend, Indiana and helps people handle family law issues such as child support, paternity, and child custody, criminal defense matters, DUIs, theft charges, and license suspensions; and financial matters such as Bankruptcy and Estate Planning. 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.

Child Support and Death – Why your end does not mean the end of your child support in Indiana

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Usually your death represents the end of many things, but under the law some obligations can still continue long after you are gone.  Often times, these debts are handled through the estate of an individual and it is usually the responsibility of the personal representative of the estate to handle these affairs.  Child support is no different.

Why doesn’t child support terminate on your death in Indiana?

Indiana has several statutes that deal specifically with the issue of a non-custodial parent dying and how it impacts his or her child support payments:

IC 31-16-6-7 – Effect of child’s emancipation or death of parent obligated to pay support – Sec. 7. (a) Unless otherwise agreed in writing or expressly provided in the order, provisions for child support are terminated: (1) by the emancipation of the child; but (2) not by the death of the parent obligated to pay the child support. (b) If the parent obligated to pay support dies, the amount of support may be modified or revoked to the extent just and appropriate under the circumstances on petition of representatives of the parent’s estate.

IC 31-14-11-19 Effect of child’s emancipation or death of parent obligated to pay support – Sec. 19. Unless otherwise agreed in writing or expressly provided in the order, provisions for child support are terminated by the emancipation of the child, but not by the death of a parent obligated to pay support.

IC 31-14-11-20 Death of parent obligated to pay support; modification or revocation of support – Sec. 20. Subject to section 19 of this chapter, if a parent obligated to pay support dies, the amount of support may be modified or revoked to the extent just and appropriate under the circumstances on petition of representatives of the parent’s estate.

IC 31-14-11-21 Claim against parent’s estate – Sec. 21. Child support that: (1) the parent was obligated to pay; and (2) has not been paid at the time of the parent’s death; constitutes a priority claim against the estate.

What is clear from the above statutes is that if you die owing child support or having a child support order in place, your estate will likely have to pay some type of child support.  In some instances the personal representative of the estate can move to have the child support modified or revoked based on the particular facts of a particular case.

Another thing to remember that while child support is given a priority claim according to I.C. 31-14-11-21, it is still in the back of the line compared to other types of claims under I.C. 29-1-14.  In most cases, people will probably pass away with a little more than enough to cover last medical expenses, funeral expenses, and a few other items that can have a priority claim above child support.  In such a case collecting back child support would be no different than collecting a credit card debt or past due bill.  Basically, you would be out of luck.

If you are in a situation where you have questions about how to handle child support within an estate, please give us a call at (574) 387-6529.

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.

Traffic Tickets in South Bend – What are your options?

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Let’s face it, traffic tickets are the one area of the law that almost everyone will have some experience with at some time or another.  So you got caught speeding and you want to know what to expect or what options you have?

You can pay the speeding ticket

With most tickets this is sometimes the easiest option.  It can also be the most costly.  A speeding ticket can have a negative impact on your insurance rates so you may end up paying more than just the ticket.  However, if this is the option that you are going to take, simply call the phone number listed on the ticket and the Clerk of the Court (in St. Joseph County, Indiana) will be able to tell you the total fine and court costs that you owe.  You can then pay the ticket over the phone with a credit card, in person, or mail in payment.

You can set the traffic ticket for a court date

In some instances, this may be something that is required.  For instance if you are ticketed for any driving while suspended offense you will need to appear for a court date.  For most speeding or moving violations a court date is not necessary if you pay the fine.

If you desire to challenge your ticket, then you will need to set the matter for an initial court hearing by calling the Clerk of the Court listed on the ticket that you received.  This has to be done no later than forty (40) days from the time that you received the ticket.

You can always have an attorney appear for you as well.  He or she may be able to work with the prosecutor’s office to come up with some alternative infraction or program for which you may be eligible that can help you from getting points on your license or face increased insurance premiums.

You can try to qualify for an infraction deferral program

St. Joseph County, Indiana, like many places throughout the State (and the country for that matter) offer a program where you can have the ticket dismissed if you complete certain requirements.  For starters, pay a fee (that can be more than the ticket).  After that you have to agree to have no traffic violations for a certain period of time (about six (6) months) and possibly complete a driver’s safety course (depending on how fast your were driving).  Once you complete all of the requirements, the prosecutor’s office will motion to the court to have the ticket dismissed.

If you have received a traffic ticket and have some questions about your options, please feel free to contact my office at (574) 387-6529.

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 Juvenile Defense Lawyer – Being “charged” with a crime as a minor

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First thing to remember that if you or your child is facing a juvenile delinquency matter is to remember that in many ways it is not the same as facing an adult criminal matter. Mostly, the differences are seen in the sentencing (disposition) of the case.

What are some of the differences between being charged as a minor versus being charged as an adult?

For starters, in adult court you have the right to a trial by jury if you so desire one.  As a juvenile this right does not exist under Indiana law.  Although this use to be the case, a series of Indiana Supreme Court cases in the late 1960′s and early 1970′s changed and altered juvenile rights.

All juvenile trials, referred to as “fact-finding” hearings are carried out in front of a judge.

Another major difference between adult court and juvenile court is what happens after the juvenile admits to the offense or is adjudicated (found guilty) after a fact-finding hearing. Typically, adult courts have always focused on some aspect of punishment, even if there is some type of rehabilitative aspect to the sentencing.  The juvenile offender is put into a system where rehabilitation is typically the goal.  As such, the court is looking towards the least restrictive options available to the juvenile and his or her family when it comes to the adjudication.

What about my rights as a juvenile offender?

Juvenile offenders have many of the same rights that adults have, these include:

  • have an attorney
  • the right a speedy trial
  • confront witnesses against him
  • to introduce evidence on his own behalf
  • call his or her own witnesses to testify on their behalf
  • to refrain from testifying against himself or to take the 5th Amendment
  • the charges must also be proved beyond a reasonable doubt

If your child is facing a juvenile delinquency matter, get your questions answered by calling me at (574) 387-6529.

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 Criminal Defense – Searching a Person

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There is a general rule in criminal law that officers may search a person after a traffic stop if there is reason to fear for or a concern for the officer’s safety.  In a recent Indiana Court of Appeals opinion there is a point where such a search can go to far.

In Westmoreland v. State of Indiana, the Court of Appeals had indicated that there are limits to when a search can be unreasonable.  In this particular case, the Defendant was arrested for marijuana possession, a Class A Misdemeanor, after the car in which he was a passenger was stopped for a routine traffic stop.  As the passenger of the vehicle, Westmoreland could be open to be searched if he did pose a threat to the officers, but during a suppression hearing.  No such evidence was presented.

Instead, what had occurred was Westmoreland was asked to step outside the car.  The Defendant made no actions that would suggest he was a danger, nor did he have any warrants to give reason for the search.  Rather the officer testified during the suppression hearing that he was searching the Defendant as a general safety concern. As a result, the Court of Appeals threw out his conviction, given that the search was unreasonable.

If you are facing criminal charges, contact us today to receive honest advice about your case.

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 Criminal Defense Lawyer – Understanding Misdemeanor Sentencing

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Okay so you had a little too much fun at that party last weekend and now you are facing a charge of Public Indecency.  You go through the embarrassment of being arrested and you find out that you are facing a Class A Misdemeanor Charge.  That sounds pretty serious especially after the Clerk hands you the paperwork before you make your first court appearance and tells you that you could face up to a year in jail!  While that statement is “technically” true there are many options for sentencing and avoiding the conviction all together.  This particular posts explains to you the technical aspect of sentence ranges for misdemeanor charges to explain that the sentencing is a range and not a hard and fast number, like a year.

Class A Misdemeanor Sentences

Indiana law provides that a person may not be sentenced for more than:

  • one year
  • or fined more than $5,000

What this means is that the Judge has the option of sentencing you to 0 days to 365 days and a fine of anywhere between $0 and $5,000.  Are there situations where the extreme sentence happens? Yes, but this is reserved for repeat offenders, people who have reached agreements with the prosecutor’s office to possibly dismiss a more severe charge, etc.  I have yet to personally see or hear about a first time offender (or second time offender for that matter) be given the maximum sentence.

Class B Misdemeanor Sentences

If you are convicted of a Class B Misdemeanor then you could be looking at a sentence range of:

  • 0 to 180 days
  • fines of up to $1,000

Again, just like with A misdemeanors you will be hard pressed to see the full sentence executed for a first time offender.

Class C Misdemeanor Sentences

A Class C Misdemeanor conviction can carry the following sentence:

  • 0 to 60 days
  • fines of up to $500

If you have been charged with a misdemeanor it is important that you talk with a criminal defense attorney as he or she can help you understand all of your options and ways to possibly avoid a conviction or whether your case should be taken to trial.

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 Paternity Lawyer – Who Can File a Paternity Action

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There are many reasons why you may wish to establish paternity.  Perhaps you may need to get a child support order in place to help you pay the bills.  Or maybe you are wanting to establish your rights to visitation and build your relationship with the child.  It could be a situation where the State of Indiana’s child support office is seeking to establish a support order because the custodial parent starting receiving benefits.  Whatever the reason, there are a few people that can file a paternity establishment petition.

Establishing Paternity under Indiana Code 31-14-4-1

Indiana laws the following people to file a paternity action:

  • the mother
  • the alleged father
  • a child
  • the Department of Child Services
  • the Prosecuting Attorney

Essentially, the mother and the father have a two (2) year time frame in which they can file a paternity action.  Of course, this time frame is somewhat of a facade as the child can file a paternity action up until the time he or she reaches the age of twenty (20), and the mother or the alleged father can typically file as “next friend” of the child as the child is typically not considered competent until he or she reaches the age of eighteen (18). The Prosecuting Attorney has until the Child reaches the age of nineteen (19) in order to file a paternity action.

Can anyone file a paternity action as next friend of the child?

The statute does not specifically spell out who can be next friend, so the Courts have let the Prosecuting Attorney, mothers, fathers, alleged fathers, grandparents, etc to serve as next friend.  There may be interesting situations in which someone could not serve as next friend of the child.  For instance, someone who signed a paternity affidavit seeking to remove himself from responsibility, may have a hard case of serving as next friend of the child because he is acting in his own best interests and not the interest of the child.  At least someone may have a strong public policy argument against this type of action.

Filing paternity actions can be technically difficult for a non-lawyer to achieve.  You should always contact a lawyer to determine whether or not you would need legal assistance in your particular case.

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 Traffic Lawyer – Understanding Your First Driving While Suspended Offense

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Driving While Suspended can lead to some serious problems.  For instance, having multiple convictions for driving while suspended can lead to a lifetime suspension or even felony charges.  While those are extreme end scenarios for people with multiple driving offenses, what about the person with the first driving while suspended charge.

Under Indiana law, the first driving while suspended charge you will receive is considered a Class A infraction.  This is not a major offense and cannot lead to jail time, but it can lead to potential problems down the road if not addressed properly.  First, you should hire an attorney that can first determine why your license is suspended.  This may be the result of an unpaid traffic ticket or another reason that can usually be remedied with payment or in some cases with negotiations with the prosecutor’s office.

If you are able to rid your record of the prior offense that caused your license to be suspended you may have more room to work with the prosecutor to keep from the driving while suspended infraction from becoming a conviction.  As previously stated, repeat driving while suspended convictions can lead to more problems down the road.  It is best to get this taken care of with an attorney that is familiar with traffic issues in your jurisdiction.

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 Bankruptcy Attorney – Your Car and Bankruptcy

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Can you keep your car while you are going through Bankruptcy?

Most of the time the answer will be yes, but the real question to be asked is should you keep your car while filing for Bankruptcy.  Let’s face it cars are expensive.  Often times people will be paying almost as much as they pay for their rent as they are paying on their cars.  The question that you should be considering is whether it is worth it to keep the car payment while going through a bankruptcy.

Your Options when it comes to your car and Bankruptcy

First, you can surrender your car to the lender.  What this means is that you give your car back to the lender and the balance owed on your car note/loan is discharged with all of your other debts.  Depending on several factors this can be a good option.  Do you have many months left to pay on the car?  Is the car bought from a high priced car lot, that sold you what amounts to a lemon?  Is the monthly car payment part of the reason you are facing bankruptcy?

Keeping the car through a reaffirmation agreement is always an option, but you want to make sure that you know what you are getting yourself into.  For starters, you are locking yourself into an agreement that cannot be discharged as part of the bankruptcy process.  You are stuck with the car and the car payment.  In situations where you may be close to paying off the vehicle, then a reaffirmation agreement may not be that bad of an idea.

What if my car is paid for?  Can I still keep it even though I filed Bankruptcy?

Indiana law allows you to claim your car just as you would any exemption.  So if the car can fit into your personal property exemptions then you would be able to keep your car.  If you are faced with a situation where the car may be worth a significant amount of money you may face an issue under a Chapter 7 Bankruptcy where the trustee could seize the asset to sell it to distribute funds to creditors.  This question can really only be answered after an attorney has had a chance to review your individual case.

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.

Tax Exemptions and Family Law Cases – South Bend Family Law Attorney

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One recurring question for divorce lawyers is who gets to claim the kids for tax purposes?  There is a reason that this question gets asked and that is because getting to claim a child or children for purposes of tax filing can amount to a significant return or a greatly reduced tax burden.  In some instances if Earned Income Credit is factored in the value of claiming a child can be worth several thousand dollars.

So how are tax exemption issues handled in Indiana and family law cases such as divorces and paternity actions?  Indiana Code 31-16-6-1.5 provides some guidance as to how Courts are to decide the exemption question:

    (b) In determining which parent may claim the child as a dependent under subsection, the court shall consider the following:
(1) The value of claiming the child as a dependent at the marginal tax rate of each parent.
(2) The income of each parent.
(3) The age of the child or children and the number of years that the child or children could be claimed as a dependent or dependents.

(4) Each parent’s percentage of the costs of supporting the child or children.
(5) If applicable, the financial aid benefit for postsecondary education for the child or children.
(6) If applicable, the financial burden each parent assumed under the property settlement in a dissolution proceeding.
(7) Any other relevant factors.

So how does this list of factors work in an actual divorce case?  In most situations the court will order a split arrangement where both parties will have the ability to claim a child.  If it is a situation where there is an even number of children involved, then typically the parents will be allowed to claim an equal number of children.  In an odd number situation the court will typically resort to an every other year situation.  Of course, parties are always free to work out their own agreement or arrangement.

What about situations where one parent provides substantially more income to the children then the other parent.  In such a situation, attorneys can make a strong argument that the use of any tax exemption would be better suited to the parent providing the majority of support, especially in a situation where the non-working parent would not receive any benefit from claiming the exemptions.

One last thing to remember is that for the non-custodial parent to receive the benefit of the tax exemption, he or she will have to be current on child support payments for the calendar year.  Specifically, the statute provides that, “the court shall include in the order that the parent may only claim the child as a dependent for federal and state tax purposes if the parent has paid at least ninety-five percent (95%) of the parent’s child support for the calendar year for which the parent is ordered to claim the child as a dependent by January 31 of the following year.”

If you have questions about how tax exemptions can work in your family law case, contact my law office today.

The Law Office of Jeffery M. Haupt is located in South Bend, Indiana and works with clients exclusively on family law issues such as divorce, child support, paternity, visitation, guardianships, and child custody. 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.