Monthly Archives

June 2016

Utah Visitation Code 30-3-37

Utah Visitation Code 30-3-37

In divorce proceedings involving minor children, one of the most important issues is child custody and visitation. This includes such issues as who will receive sole or joint legal custody, physical custody, and reasonable visitation rights. Typically this is resolved before the divorce action is brought but if not, it becomes a contested hearing in court.

The Hardest Issue

child custody and visitationBut one of the hardest issues to resolve is if the parent who has sole legal and physical custody decides to move out of the area. So for example, assume Mrs. Smith is in California but has just received a promotion and wants to transfer to Georgia. No one would doubt her ability to move up in the company and better her life and salary. But what about the father who remains back in California. What about his visitation rights? For this to be accomplished, the wife must receive permission from the court. And she must abide by the applicable law.

 

So the first thing we do is look at the state’s statute 1) https://en.wikipedia.org/wiki/Statute. For example, in Utah, there is Utah Visitation Code 30-3-37. It lays out the ground rules for such a motion of relocation.

Definition of Relocation

Definition of RelocationUnder the statute, relocation is defined as moving 150 miles or more from the residence of the other parent. In other words, if hypothetically the move was only 100 miles, there will be no need to secure court approval.

 

Next, the relocating parent must give at least 60 days advance notice of the intent to relocate. The notice must indicate very clearly state neither parent will interfere with the others parental rights including reasonable visitation, even if there is a move.

The Final Verdict

divorce hearingUltimately at the hearing, the final decision is based upon the best interest of the child. If the relocation is allowed, the court will then determine the new visitation schedule and decide how transportation costs will be allocated between the parents. One of the factors is if the relocation makes it more difficult for both parties to share custodial time and typically the large cost and expense of the other parent in having to travel long distances for visitation. This is important because in many cases the other parent simply gives up because they don’t have the time and the money to fly long distances to see their children, even though they wish in their heart to do so.

Guidelines

Under Utah Visitation Code 30-3-37, the court must also follow strict guidelines. For example, for children between ages five and 18, the other parent, alternating years, must be able to visit for Thanksgiving and spring break. There must also be entitlement to Winter break and Fall break. Finally, one-half of the Summer break must be allowed to the other parent who could technically fly the child back to California in the above example.

 

References   [ + ]

termination of parental rights

Tca 36-1-113

We all cherish our children and will do everything possible to preserve those natural parental rights. It is indeed a rare case in which anyone would even consider taking a child away from his or her parents. But unfortunately, there are situations in which it is in the best interest of the child to terminate such a relationship. This is why a number of states have statutory grounds for doing so. One of them is Tennessee statute known as TCA 36-1-113.

The termination of parental rights

The termination of parental rights must have strong evidence which is called “clear and convincing” 1) Visit Legal Information Institute for Definition: https://www.law.cornell.edu/wex/clear_and_convincing_evidence evidence. And it must point toward the best interest of the child. Typically this means the household is materially dysfunctional including parents that are abusive, absent, in jail, neglectful, under the persistent influence of drugs and alcohol or are otherwise not properly caring for the child.

 

Tca 36-1-113 termination of parental rightsIf such a proceeding is brought, it is done by a petition signed under penalty of perjury with very specific facts pointing toward that abuse. In so doing, the petition must allege actual facts not, not suspicion or opinion.

The Hearing

Then notice must be given, usually by personal service, on the parents themselves so that they have a right to appear at the hearing, give evidence, call witnesses and generally testify their side of the story. And the petition must clearly indicate that if it is not contested, it could result in a judgment of termination.

 

Incarcerated ParentsIn the event one of the parents is incarcerated, they will also be given the chance to appear at the hearing. And, if a parent cannot afford to hire an attorney, one is typically appointed for him or her.

 

As far as the evidence, there is typically a showing that the bad conditions at home are so severe that there is little likelihood these conditions would be remedied any time in the near future.

 

Foster HomeBut what happens if there is termination? Typically the next stage is to find a proper foster home2)Child Welfare Information Gateway: https://www.childwelfare.gov/. The court looks at that as well and determines whether this might in fact be a negative influence to the child.

 

Of course, if the parent is incarcerated for child molestation, the chances are very slim that they would be able to prevail at such a hearing.

References   [ + ]

1. Visit Legal Information Institute for Definition: https://www.law.cornell.edu/wex/clear_and_convincing_evidence
2. Child Welfare Information Gateway: https://www.childwelfare.gov/
South Carolina Code Section 62-5-501

South Carolina Code Section 62-5-501

Having a power of attorney is an important device to keep within your estate planning portfolio. It gives power to your designated attorney-in-fact when it is needed most, especially as to the signing of important papers, transfer of real estate, open opening and closing bank accounts, and making myriad health care decisions. Few would deny the fact that it is a good idea to have such a document.

And it does not mean that the person signing the power of attorney is giving up any of his or her powers. That person can exercise all rights they have as to their property at any time. It is only when the person is unavailable, whether temporarily or permanently, the benefits of the power of attorney kick in.

power of attorney

So it is important the power of attorney be as powerful and long-lasting as possible. But under general law, if the person signing the power of attorney, called the principal, becomes disabled whether physically or mentally, the power of attorney is no longer effective. The legal theory is that the principal must be able to change or revoke the power of attorney at any time and if this ability is lost, the instrument itself was no longer valid.

But one of the benefits of the power of attorney is to do just that: be effective after someone is disabled. After all, this is when it is needed the most. So that is why many states have special statutes that allow the agent to act after such disability. These are called “durable powers of attorney”.

South CarolinaOne such statute is SC Code Section 62-5-501. It indicates that if the power of attorney has the phrase “This power of attorney is not affected by physical disability or mental incompetence of the principal which renders the principal incapable of managing his own estate”, then the instrument becomes permanent and will survive that disability.

So for this reason, it is very important to have this language in your document. If you already have a power of attorney without it, simply execute another power of attorney or amendments to it and insert this language.

But remember, upon the death of the principal, even with this statute or language, the power of attorney terminates. Otherwise the power of attorney would be acting as a will or trust which would not be proper.

Set Up Costs For A Business

Set Up Costs For A Business

For the wandering entrepreneur among us, there is always a desire to start one’s own business. Potentially unlimited income, independence, being your own boss, realizing your creative juices, making a mark on your community, and building up the future for your family and staff, are all important factors. More and more people are capturing this entrepreneur spirit. But what are the set up costs for a business?

LLC or Corporation

First, it is recommended you set up an LLC or Corporation. It typically costs about $100 by doing so online with your state’s Secretary of State. You fill-out articles of incorporation, typically online with basic information as to the name of your business, location, initial registered agent, and incorporator.

corp_vs_llc

If your principal place of business or residence is in the in another state, you have to have a local registered agent. That typically costs $100-$200.

Online Business

online-businessAssuming you do not have a brick-and-mortar operation, there is the set up cost of developing a website, registering your URL, having a hosting service, and possibly hiring a graphic artist for the images on your site.

 

If you are using photos, a number of online photo services usually sell them in the neighborhood of $50.

 

google-adwords-logoAdvertising on Google can be very expensive if you are not going the organic search method. That could easily cost between $100 and $1000 a day.

 

Then there it is the requirement of having office furniture, software, computers, copying and fax machines, scanners, stationery, business cards, and even signage.

Offline Business

offline-businessOf course, if you set up a brick-and-mortar store, it can be quite expensive including lease and security deposits, monthly rent, tenant improvements, and much more elaborate office furniture.

 

Franchises

Franchises are a good idea, because it means you do not have to invent the wheel. The cost can be anywhere from $25,000 to $2 million for the larger franchises. It has the benefit of built-in advertising, name recognition and customers, but it can be quite expensive. Also a good idea is to make sure you are in a geographical area that is not too competitive.

Trademark

trademark your nameIf you wish to trademark your name, the United States Patent and Trademark Office usually charges about $275 online.

 

All in all, the set up cost for a business can be expensive, but in the long run, isn’t it worth it?

 

no fault divorce

Ark Code Ann 9-12-301

Most of us are familiar with how easy it is, moderately to secure a divorce. In days gone by, it was quite difficult, especially because of the required proof of physical or mental cruelty, abuse, adultery and the like. Then in the 70s, there was widespread change through the various states, allowing for what is called “no—fault” divorce. California would be an example. In this state, one need only prove irreconcilable differences, which is indeed a very low threshold approved. As a matter fact, no one would go through a divorce anyway unless there were such irreconcilable differences in the first place.

200px-Seal_of_Arkansas.svgBut let us look at the State of Arkansas. This is one of the few states in which good cause must be proven in order to secure a divorce. And the grounds are laid out in Ark Code Ann 9-12-301. Let us examine some of them to get a grasp on how this can be accomplished.

Ark Code Ann 9-12-301Ark Code Ann 9-12-301 indicates there is no such thing as no-fault divorce in this State. Instead, there must be allegation and proof of one or more of the following in order to secure such a divorce: one party is impotent, conviction of a felony or other infamous crime, addiction or habitual drunkenness for at least one year, cruel and barbarous treatment so as to endanger the life of the other, offering indignities which make the household intolerable, adultery, or whether the husband and wife have lived separately and apart for 18 continuous months or more without cohabitation.

Alternative grounds are if the husband and wife have lived separate and apart for three consecutive years without cohabitation because of the incurable insanity of one. This requires evidence of from at least two reputable physicians.

As can be seen from the above, probably the easiest proof is to show that the parties have not cohabitated for 18 continuous months or more. That way good cause need not be proven– it is simply a question of the lapse of time.