Driving with a Suspended License in Arizona

by John Schill | Dec 22, 2020 | Laws

CRIMINAL DEFENSE ATTORNEYS

MORE THAN 100 YEARS COMBINED EXPERIENCE

Driving with a Suspended License in Arizona

Driving is a privilege, and you can lose it if the authorities find that you were an irresponsible or negligent motorist. Getting your driving privileges taken away is bad enough, but you can compound that mistake by driving with a suspended license.

Simply put, operating a vehicle with a suspended driver’s license is a terrible idea. You’re needlessly putting yourself at risk. If you thought that was a nightmare, getting caught disregarding that fact will be an even bigger problem.

Learning more about what could happen if you ignore your situation will help drive home the importance of following the laws. Read on to learn more about a suspended driver’s license.

Also, check out the penalties that come with ignoring your suspended license and how you can reinstate your privileges. We’ll also touch on other relevant topics to ensure that you know what to do in the event of a suspended driver’s license.

What Is the Difference between Getting Your Driver’s License Suspended and Revoked?

To get things started, let’s address a topic that is of significant confusion for Arizona motorists. There are two ways for the state to take away your driving privileges. They can choose to either suspend your driver’s license or revoke it.

So, how do those two things differ from one another?

The biggest difference between them is related to their respective periods of effectiveness. If you have a suspended driver’s license, you’ll receive a clear idea of when you can reinstate your driving privileges. You cannot have them restored automatically after the suspension period, but you’ll still know when it ends.

Revocations are different.

According to the Arizona Department of Transportation, revocations can last for an indefinite period. They may inform you of the minimum amount of time that the period of revocation may last, but it can go well beyond that.

Drivers may also have a tougher time getting their driving privileges restored if they’re dealing with a revocation instead of a suspension.

The Reasons Why Your Driver’s License May Be Suspended

Now that we’ve sorted through the differences between suspension and revocation; let’s talk about the former. For this section, let’s focus on why the state may suspend your driver’s license in the first place.

Driving Under the Influence

Getting caught driving under the influence will lead to a suspended license. Remember that the legal limit for your blood alcohol concentration is 0.08 percent.

If you’re the driver of a commercial vehicle, the legal limit is 0.04 percent. Drivers under the age of twenty-one are not allowed to have any trace of alcohol in their system if they’re driving.

Refusing to Take a Sobriety Test

The authorities can also suspend your driver’s license if you refuse to take a sobriety test. Make a habit out of continually refusing those tests, and you could end up saddled with more troublesome penalties.

Lacking the Necessary Insurance

Drivers are required to maintain auto insurance on the vehicles they use. Failing to stay up-to-date on your car insurance will lead to you facing a variety of penalties. Among those penalties is the potential suspension of your driver’s license.

Reckless Driving

Drivers are to exercise caution and watch out for their fellow drivers when they’re on the road. If you fail to do that and drive recklessly instead, you’ll quickly find yourself in trouble.

Examples of reckless driving include going well over the speed limit, intimidating other drivers, and driving in the wrong lane. Driving habits such as swerving and tailgating may also be examples of reckless driving, so avoid them as much as possible.

Committing Multiple Moving Violations

The state of Arizona utilizes a points system to help determine when to suspend a person’s driver’s license. Those points are typically added to your record if you commit a moving violation of some kind.

Upon tallying eight total points within twelve months, you will become a candidate to have your driver’s license revoked. Usually, a person will receive a suspended license if they fail to attend Traffic Survival School after accumulating the point total.

Moving violations such as unlawful lane changes and running the red light account for two points. Compile enough of those points, and you could wind up with a suspended license.

Failing to Pay Fines, Tickets, and/or Legally Mandated Support

Don’t ignore those tickets and fines you must pay. Ignore them long enough, and you could end up paying a higher price in the form of a suspended driver’s license.

Tickets and fines are not the only payments you’ll need to make if you want to avoid getting your license suspended.

As per the terms of your divorce, the court may have ordered you to pay child support. Disregarding that order is not advisable. The court may find you in violation of your divorce agreement and suspend your driver’s license as a result.

Failing to Show Up for Court Dates

They can take away your driving privileges if you fail to meet your other legal obligations. If the court orders you to show up on a given date, remember to make that appointment. There’s a chance your driver’s license could be suspended if you fail to show up for your court date.

The Penalties for Driving with a Suspended License

What happens if you get caught operating a vehicle with a suspended driver’s license? The answer is that you’ll receive penalties. Let’s discuss those penalties in greater detail below.

Vehicle Impoundment

One penalty that applies to all drivers who operate their vehicles with a suspended license is vehicle impoundment. They can impound your vehicle for up to thirty days due to your violation.

So, can you pay the fees and retrieve your vehicle from the impound lot? It’s not that simple.

First, you’ll need to request a hearing with the police officer who impounded your vehicle. You must do that quickly as well. Many police stations across the state require drivers to request a hearing no more than ten days after impounding their vehicle.

During the hearing, you and your lawyer will have to make the case to the police officer that they should release your vehicle. Even if the police officer does agree to release it, you will still pay the corresponding fees.

Aside from how troublesome it is to not have your car; you’ll also have to deal with the inconvenient process of trying to get it back. It won’t be a pleasant ordeal for anyone to experience.

Probation

Probation is another form of punishment often handed down to motorists who ignore their suspended licenses. The probation periods handed down may vary depending on the situation.

Jail Time

Motorists who irresponsibly take to the road with a suspended driver’s license may also be sentenced to jail time. First time offenders may avoid jail time but repeat violators will not be as lucky.

The second time, they could sentence you to spend five days in jail. A third offense can lead to a jail sentence of thirty days. Get caught driving without a valid license for the fourth time, and you could face up to ninety days in jail.

If you continue to commit that same violation, you could receive a six-month jail sentence.

This is where having a good lawyer can help you out. Your lawyer may get you a shorter jail sentence after making your case in court.

Fines

Irresponsible drivers will also pay a fine due to their violation. Like with jail time, the amount you’ll pay will increase if you’re a repeat offender. Your lawyer could also help here by negotiating a smaller fine for you to pay.

How to Reinstate Your Suspended Driver’s License

There are two different processes for reinstating your suspended driver’s license in Arizona. Take note of which one applies to your case.

Reinstating Your Suspended Driver’s License after Failing to Pay a Traffic Ticket or Appear in Court

First, you have the process that applies to those who failed to pay their traffic tickets or show up in court.

The Steps:

To begin the reinstatement process, look at your suspension notice and try to find the court that issued it.
Once you identify the court, place a call to them.
Ask the court about any penalties you have incurred. Pay all those penalties.
After making the payments, you will receive either a court abstract form or a court clearance receipt.
Take whichever document was given to you to a Motor Vehicle Department license office.
Finish by paying the $10 reinstatement fee and the application fee corresponding to your age group.

Reinstating Your Suspended Driver’s License after Committing Other Violations

This other process applies to all the other cases wherein the driver’s license was suspended for a reason other than failing to pay a ticket or failing to show up in court.

The Steps:

Go to the Motor Vehicle Department license office.
Pay both the $10 reinstatement fee and the application fee corresponding to your age group.

Individuals who had their license suspended due to a DUI charge, refusing to take a sobriety test, or because they lacked insurance will have to fulfill an additional requirement. The requirement in question is securing proof of future financial responsibility.

The proof of future financial responsibility can come in the form of an insurance certificate or a certificate issued by the Arizona Treasurer’s office.

Additional Details on Payments

We noted above that you need to pay fees to get your suspended license reinstated. The reinstatement fee is $10, but the application fee can change.

For drivers age thirty-nine and under, the application fee is $25. Those in the forty-forty-four age group will need to pay $20. Drivers in the forty-five to forty-nine age group will pay an application fee of $15. If you’re fifty or older, your application fee is $10.

You can make the payment using cash, a cashier’s check, a credit card, or a money order. Personal checks will not be accepted, and cash payments cannot be sent via mail.

driving with a suspended license

What Are Restricted Driver Permits?

You may already understand that driving with a suspended license is a bad idea. Even so, you may find yourself without any other option but to risk getting caught because not driving could lead to you losing your job.

It’s a tough spot to be in, and that’s why restricted driver permits are made available. Restricted driver permits can act as temporary licenses for individuals who need to continue driving after a suspended license.

Restricted driver permits are different from driver’s licenses, however. For starters, your restricted permit does not allow you to drive anywhere you want.

Drivers using that permit can only go to their workplace, school, or back home. Restricted permits don’t really allow owners to head to the grocery or even to a friend’s house.

The state of Arizona is also strict when it comes to who are given restricted driver permits. Only those who had their license suspended due to an insurance issue or a DUI conviction are eligible to receive the permit. If your license was suspended for another reason, you’re out of luck.

Individuals found guilty of driving under the influence must meet additional requirements before being granted a restricted driver permit. Among those requirements are completing a treatment program, paying fees, and clearing a specific suspension period.

A suspended driver’s license can truly wreak havoc on your daily life. It can affect your job performance, drastically change your schedule, and force you to take on additional expenses. Getting caught driving can be the cause of even bigger problems.

Deal with your situation better with the help of a skilled and experienced lawyer. Allow us at the Schill Law Group to help with your current situation. Reach out to us today and learn more about the assistance we can provide.

What’s the Difference Between a Felony DUI and a DUI?

by John Schill | Dec 18, 2020 | DUI

DUI DEFENSE ATTORNEYS

MORE THAN 100 YEARS COMBINED EXPERIENCE

What’s the Difference Between a Felony DUI and a DUI?

The inherently dangerous act of driving under the influence can never be excused or shrugged off. If the authorities arrest you, the law will punish you accordingly depending on whether you committed a misdemeanor or felony DUI violation.

Knowing the difference between a misdemeanor DUI charge and a felony DUI charge is important. The dangers of impaired driving should already be reason enough for you to sober up before getting behind the wheel. If they are not enough, though, the penalties you could receive should give you more reasons to reconsider.

Let’s talk about the differences between a misdemeanor and a felony DUI charge in this article. The information here should tell you all you need to know about how seriously Arizona takes impaired driving and why you should avoid it.

A Refresher on Drunk Driving in Arizona

Before we get into differentiating the misdemeanor and felony variants of DUI charges, let’s focus first on what drunk driving is. Alcohol intoxication can impact how you perceive your surroundings and how you control your body. Given alcohol’s effects on the body, individuals who are intoxicated while driving pose a greater risk to themselves and the people around them.

The legal limit for blood alcohol concentration (BAC) is 0.08 percent. The authorities can charge drivers with a BAC level that exceeds 0.08 with a DUI violation.

Notably though, that legal limit only applies to drivers of private vehicles who are twenty-one years old or older.

In the state of Arizona, they can still charge drivers of commercial vehicles with a BAC level above 0.04 with DUI. For drivers under the age of twenty-one, any level of alcohol in their bodies will warrant a DUI charge.

When Is a DUI Charge Considered a Misdemeanor Violation?

Most of the time, they will regard a DUI charge as a misdemeanor if it’s your first violation. That is usually the case regardless of whether you were driving a private or commercial vehicle. Drivers under the age of twenty-one who get a DUI are likely to receive a misdemeanor violation.

A first-time DUI charge remains a misdemeanor violation if you did not harm anyone due to your negligence. They would not elevate the charge if you did not have anyone under the age of fifteen inside your vehicle.

What Are the Penalties for a Misdemeanor DUI Violation?

You can expect to receive some significant penalties even if it’s your first misdemeanor DUI charge. Jail time will be among the penalties you face. To be more specific, you may spend time in jail for no less than ten consecutive days.

Arizona residents in violation of the state’s DUI laws for the first time will also pay a fine. The minimum amount you’ll pay is $1,250.

Violators will also render community service and take part in alcohol education, screening, and treatment. In Arizona, individuals found guilty of violating their DUI laws will also get a certified ignition interlock device attached to any vehicles they drive.

Points are additional aspects of DUI penalties. Eight points are added to your record if you commit a DUI violation.

Because you have eight points on your record, you are a candidate to have your driving privileges suspended for up to twelve months. You will need to attend Traffic Survival School to avoid getting your driving privileges suspended.

One more thing to note here is that the penalties apply only to those with a misdemeanor DUI violation. That means your BAC level is at 0.08 percent or higher but below 0.15 percent. If you receive an extreme or super extreme DUI misdemeanor charge, the penalties will be different.

How BAC Level Affects Your Penalties

A subject of significant confusion is whether your BAC level will affect the kind of charge you receive. It’s easy to see why Arizona residents can get confused considering the state uses different terminologies when referring to DUI charges based on BAC levels.

For instance, if your BAC level is over 0.15 percent, you could get an extreme DUI charge. You could also receive a super DUI charge if your BAC level is 0.20 percent or higher.

Those distinctions don’t mean much in terms of whether you’ll get a misdemeanor or a felony. Even if your BAC level qualifies you for a super extreme DUI charge, they will regard it as a misdemeanor.

So, if the BAC level does not change a misdemeanor to a felony, why do extreme and super extreme DUI charges still exist? The distinction is necessary because it affects the penalties assessed.

In the case of an individual hit with an extreme DUI misdemeanor charge for the first time, jail time will be a minimum of 120 days. The individual will also pay a minimum fine of $3,250 and have their license revoked for twelve months. The same penalties regarding alcohol education, screening, and treatment, plus community service and the certified ignition interlock device will remain in effect.

Is a Second DUI Violation Considered a Felony?

Like we noted earlier, you’ll likely receive a misdemeanor violation the first time you’re guilty of impaired driving. But what about the second time you violate Arizona’s DUI laws? Will you be charged with a felony then?

The answer depends on a few factors.

The charge you ultimately receive will depend on whether you caused injury while drunk driving. Causing serious injury typically means that your charge will go up to a felony.

They can also charge you with a more serious crime if you were drunk driving while someone under the age of fifteen was in the vehicle.

Basically, the same criteria that could lead to you receiving a felony for your first DUI violation still apply the second time around. However, there are additional factors they will look at.

Remember, they can suspend your driving privileges if you fail to attend Traffic Survival School. If they suspend your driving privileges, getting caught drunk driving again will result in a felony charge.

If the arresting officer finds that a certified ignition interlock device was attached to your vehicle when you were driving drunk, you can expect to receive a felony. That device is supposed to prevent the vehicle from starting if your BAC level is over the legal limit. The fact that you were drunk driving means that you either tampered with or circumvented the device in some way.

What Are the Penalties for a Second Misdemeanor DUI Violation?

The penalties will be harsher the second time you receive a misdemeanor DUI violation.

Mandatory jail time will be a minimum of ninety days. Meanwhile, your minimum fine will be $3,000. You will also render community service again.

A certified ignition interlock device will again be attached to your vehicle. Repeat violators will also undergo alcohol education, screening, and treatment.

Lastly, they will revoke your driver’s license for twelve months. That will be the case even if you decide to attend Traffic Survival School.

What Is Aggravated DUI?

To put it simply, aggravated DUI is what you’ll receive if your DUI violation goes from being a misdemeanor to a felony. So, what constitutes an aggravated DUI charge in Arizona? The courts will look at a variety of factors when determining that.

First, they’ll consider if your drunk driving led to injury or possibly even cause someone’s death.

Next, the courts will consider if you were driving recklessly while under the influence of alcohol. A factor they consider is the age of the passengers with you. If someone under the age of fifteen was in your vehicle while you were driving drunk, you would likely receive a felony.

Also, driving in the wrong direction while drunk is another example of being reckless on the road. You could get a felony because of that.

The courts will also not take kindly to you if you ignored their orders. Driving sober with a revoked license can already get you in plenty of hot water. Driving drunk with a revoked license will lead to a felony charge.

You should also avoid messing with your certified ignition interlock device. Felony charges will be handed down to a drunk driver with certified ignition interlock devices attached to their vehicle.

One more factor that matters in aggravated DUI cases is the number of times you’ve been arrested for this same violation. Arizona law dictates that drivers who are caught driving drunk a third time within a span of eighty-four months will be charged with a felony. Subsequent violations will also lead to a felony.

What Are the Penalties for an Aggravated DUI Charge?

The penalties handed down for aggravated DUI charges are mostly similar to the ones that are attached to misdemeanor cases. Guilty parties will attend alcohol education, screening, and treatment. They will also need to perform community and get a certified ignition interlock device attached to their vehicle.

A person guilty of aggravated DUI will also have their driver’s license revoked for twelve months.

The most significant difference between the penalties handed down for misdemeanor and felony DUI charges is the type of incarceration they will receive.

Individuals guilty of aggravated DUI can count on harsher punishment in that regard. The time they spend incarcerated will be no more than two years. On top of that, they will also serve their sentence in prison instead of jail.

felony dui checkpoint

What Are Other Ways a Person May Be in Violation of Arizona’s DUI Laws?

Arizona residents should know that you don’t need to fail a test to violate the state’s DUI laws. If you’ve been stopped because they suspected you were driving under the influence and you refused the tests, they can revoke your driver’s license for up to twelve months.

Drivers who refuse the test a second time within 84 months may lose their license for a longer period. In that case, the period of revocation could last for two years.

Losing your driver’s license is already a significant inconvenience, but that’s not all you need to worry about. Drivers who refuse the test will also undergo alcohol screening before their driver’s license can be reinstated.

How Can an Attorney Help if You’ve Been Charged with Drunk Driving?

There is no excuse for drunk driving. If you’ve had a few drinks, you have no business getting behind the wheel of your vehicle. Ride with a sober friend, book a ride via a ridesharing app, or hop into a taxi if you want to get home while you’re still intoxicated.

Still, even responsible people can make mistakes from time to time. If you believe that you did make a mistake, but you did not commit a felony, an attorney can help you out.

Your attorney could argue that the police officers were using faulty equipment when they tested your BAC level. An attorney could also argue that you did not know you had consumed an alcoholic drink before you got into your vehicle.

They can use different defenses in DUI cases to prove your innocence. Partner up with a skilled and experienced Arizona attorney if you want justice for your case.

Arizona residents in need of an attorney can approach us at the Schill Law Group for assistance. Contact us today, and we’ll help you fight any erroneous charges against you.

Questioning Your Safety? Get an Ex Parte Restraining Order

by John Schill | Nov 19, 2020 | Domestic Violence

CRIMINAL DEFENSE ATTORNEYS

MORE THAN 100 YEARS COMBINED EXPERIENCE

Questioning Your Safety? Get an Ex Parte Restraining Order

People have different reactions when they are staring at the prospect of getting divorced. Many accept the decision of their partner and cooperate, while others may react that warrants taking out an ex parte restraining order.

The hope is that you never end up in a situation where you must take out a restraining order to feel safe. Still, it won’t hurt to know about the process of requesting one.

In this article, we’ll talk at length about restraining orders. We’ll discuss ex parte restraining orders and how they are different from the standard orders. You’ll also pick up tips regarding how to file for a restraining order and how to proceed with it.

What Is a Restraining Order?

Before we can dive into the numerous topics concerning ex parte restraining orders, let’s clarify what the order itself is for. In the state of Arizona, restraining orders are known officially as protective orders.

The purpose of a restraining order is to prevent a specific person from committing domestic violence against another person or persons. The actions taken by the person named don’t have to go that far for the order to take effect, though. Protective orders are also supposed to shield individuals from acts of harassment carried out by their assailants.

It’s important to clearly define what a protective order can and cannot do.

First, you should know that restraining orders do not guarantee your safety. However, they can improve the level of safety you can have at home, the office, or school. If the order indicates that a specific person is not allowed to go near your home, office, school, or other places listed, they must abide by that.

What the protective order also does is provide you with a way to take legal action right away. If the party named in the order violates the terms, they will be held accountable by the law.

Restraining orders in Arizona are valid for one year from the original date of service. Do note, though, that the protective order will expire automatically if it isn’t served within one year.

restraining order paperwork

How Does an Ex Parte Restraining Order Differ from a Standard Restraining Order?

Standard restraining orders and ex parte restraining order are similar in terms of what they are supposed to accomplish. They are also often requested for the same reasons.

The main difference between them is how quickly they may take effect.

Typically, when you file a petition for a protective order, the court will not grant it right away. Instead, what the court will do is notify the person named as the respondent in the protective order. The petitioner and the respondent will then have opportunities to present their evidence.

After both parties present their evidence, the court will then decide whether to grant the protective order.

The issue with that process is that it can take a bit of time. If you are genuinely fearful for your safety and afraid of what the other party is capable of, every second you’re left vulnerable can make a huge difference. You may not even feel comfortable going to work or school due to the possibility that the other party is waiting there.

As much as possible, you want the protective order to take effect right away. That’s what the ex parte restraining order is for.

Once granted, the ex parte restraining order can take effect without a hearing.

The party named in the protective order will still be contacted, but the notification they receive will be a bit different. They will be notified that a protective order has been enforced against them and they will be told that they can respond during a hearing that will be set on a later date.

When Are Ex Parte Restraining Orders Granted?

The courts don’t usually like making rulings when only one side can present their case. Fairness is important, after all, and everyone should have a chance to plead their case before the courts make important rulings.

Judges are willing to make exceptions for ex parte restraining orders.

The main reason why judges grant this protective order is that they believe that the petitioner is facing an imminent threat of physical harm posed by the other party. If the judge believes that not implementing the protective order right away could genuinely endanger the petitioner’s life, it will likely be granted and served as soon as possible.

How Soon Does an Ex Parte Restraining Order Take Effect?

Let’s say that you’ve already requested an ex parte restraining order against your former spouse, and the judge granted it. Does that mean it will take effect right away? The answer to that question depends on how quickly they serve the order.

Being granted an ex parte restraining order means that the participation of the other side is not needed for the order to become effective. However, the respondent must still receive the order properly before it can take effect. The police or an authorized process server typically serves the protective orders.

Given how important serving the order is, you must be certain that you are giving accurate information to the court. The protective order can take effect sooner if the servers have an easier time finding the other party.

How Do You Request an Ex Parte Restraining Order?

The process of requesting an ex parte restraining order is pretty much the same as filing for a standard restraining order.

To get the process started, you must head to the nearest court in your area. All the courts in the state of Arizona can review and rule on protective orders, so you don’t have to worry about traveling a great distance. Notably, though, the process for requesting a protective order may vary slightly depending on the court, so call ahead of time to ask about it if you can.

Once you’ve reached the court in your area, go ahead, and speak to the court staff.

The court staff will provide you with instructions regarding how to proceed with your petition. Likely, they will ask you to fill out some paperwork.

Examples of the details they will request from you include the name, address, and birthdate of the respondent. They may also ask you if there are prior court filings that exist which involve you and the other person. The court may ask you to provide the address and contact information of the place where they must serve the protective order.

Be as accurate and detailed as you can be when providing those bits of information. Remember that the protective order can only take effect once the courts serve it. Providing accurate information will allow the other party to receive it in a shorter amount of time.

The judge will review all the paperwork you have submitted. After that, you will likely have an opportunity to speak with the judge. You and the judge can discuss your request for an ex parte restraining order in detail during that conversation.

It usually doesn’t take the court a long time to hand out rulings regarding restraining orders. Petitions are often received, reviewed, and ruled upon within the same day.

What Happens after Requesting an Ex Parte Restraining Order?

Assuming that the court did grant your petition and the person you filed against has received it, what happens next? The ball is now in the other party’s court. They will have a chance to appeal the protective order.

The respondent can request a hearing any time before the expiration of the restraining order. As soon as they let the court know that they want to appeal; the courts will set a hearing. Often, the hearing for the protective order will take place within ten days after the other party’s response.

You will also learn about the hearing, and you must attend.

What Can You Expect During the Hearing?

Upon learning when the hearing will take place, you need to prepare. Gather all the evidence you can to show that they should convert the restraining order into a permanent restraining order.

As for the hearing itself, it can go in different directions, according to LegalZoom.

The respondent may object to the ex parte restraining order. You and the respondent must then present your evidence to the court, and a trial will commence. The judge will review the evidence and hand down a ruling.

The judge can decide to cancel or convert the temporary order into a permanent one based on the evidence presented by both sides.

Now, if the respondent shows up for the hearing but doesn’t contest the ruling, the protective order will likely become permanent. The ex parte restraining order may also become permanent if the respondent doesn’t show up during the hearing.

Can an Ex Parte Restraining Order Be Dismissed?

There are three ways to get an ex parte restraining order dismissed. Let’s talk about them below.

The Court Rules against You after the Hearing

The hearing allows you and the respondent to show why the protective order should remain or be dismissed. If the respondent makes a more compelling case and gets the court to rule in their favor, they will likely dismiss the protective order.

You Failed to Show Up to the Hearing

The respondent failing to show up to the hearing will often lead to the temporary restraining order becoming permanent. You failing to appear at the hearing will have the opposite effect. The judge will likely dismiss the restraining order if you don’t show up.

You Requested to Have the Restraining Order Dismissed

It is possible to have a protective order voluntarily dismissed. To do so, you as the petitioner must go to the Protective Orders Office.

Bring an ID with you and fill out the paperwork that they give you. The judge will dismiss the order after you finish the paperwork.

How Is an Ex Parte Restraining Order Enforced?

Enforcing a restraining order is not as simple as you might have assumed.

There are cases where the person who violated the restraining order also committed a crime in the process. In a scenario such as that, you can call the police, and they will act against the person who violated the restraining order.

It’s a bit more complicated if they have not committed a crime. You can still call the police, but they can only help you file a police report. The police cannot act against the other party because they did not commit a crime.

What you can do is head to court to file a complaint. Indicate that you want the other party held in contempt of court. They should schedule a hearing after that.

During the hearing, you must present evidence proving that they violated the order. The other party may object to that and present their evidence.

If the court rules in your favor, the other party may need to pay for your attorney’s fees and related costs. They will then have a chance to purge their contempt of court by performing certain tasks.

The court may opt not to take any additional actions if the offending party completes those tasks. If the offending party does not finish those tasks, they may be fined or imprisoned.

Can You Extend the Duration of a Restraining Order?

Extending the duration of a protective order is possible if the other party violated it. Go to the court once again and file a request to have the restraining order extended. They will tell you how to proceed from there.

It’s possible that another hearing will be necessary.

Now, if the restraining order has expired and the other party did something again that is causing you to believe that you are facing an imminent threat, you can file a request for a new order.

Filing for an ex parte restraining order can be a complicated undertaking. Seeking legal assistance before filing your petition is a good idea. Contact us at the Schill Law Group and allow us to help you make your case to the judge.

What is a Postnuptial Agreement?

by John Schill | Nov 18, 2020 | Family Law

FAMILY LAW ATTORNEYS

MORE THAN 100 YEARS COMBINED EXPERIENCE

What is a Postnuptial Agreement?

You don’t enter a marriage with a pessimistic perspective on how it will turn out. Most couples get married, hoping that they’ll be together forever, but the reality for many is that the union won’t last, which is why it’s worth looking into signing a postnuptial agreement.

But what is a postnuptial agreement? You’ve probably heard about prenuptial agreements before, but a postnuptial agreement may be something new to you.

In this article, we’ll talk at length about what postnuptial agreements are and how they work. We’ll also discuss whether they are options you should consider in your marriage. Please read on to learn more about the importance of the postnuptial agreement.

What Is a Postnuptial Agreement?

Marriage represents the legal union of two individuals. Upon getting married, the people involved form a partnership recognized by the law. As part of entering that partnership, the two spouses agree to share their assets.

In situations where the married individuals stay together, the sharing of assets becomes a non-issue. Not all marriages remain intact, however, and the involved parties may seek a divorce for one reason or another.

Throughout the divorce proceedings, they will discuss the subject of dividing assets. That is when the conversation can become contentious. Considering they discuss money, properties, and other assets, it’s not surprising to see both sides fighting for what they believe they deserve.

This is where the postnuptial agreement can prove helpful and valuable.

A detailed postnuptial agreement will get rid of the need for the two parties to bicker about dividing their assets. It may also lay out plans for how to deal with other matters related to the marriage. Having an agreement such as that in place will help expedite the divorce proceedings and prevent one side from taking advantage of the other.

How Does a Postnuptial Agreement Differ from a Prenuptial Agreement?

Inevitably, discussions involving postnuptial agreements will also lead to talks about prenuptial agreements. So, how do those two agreements differ from one another?

The biggest difference is the timing when they completed the two agreements. Prenuptial agreements are signed prior to the marriage, whereas the postnuptial pacts are after the ceremony.

They may also differ at times in terms of the representation of the two parties. For prenuptial agreements, the two parties must have different attorneys. The two parties can work with the same attorney when putting together a postnuptial pact, but they are advised to work with different legal professionals.

One more differentiating factor between prenuptial and postnuptial agreements is how common they are. According to this article from The Plunge, prenuptial agreements are way more common than postnuptial agreements.

That said, the article also acknowledges that postnuptial agreements are becoming more common. The day may come when both become routine elements of getting married.

What Are the Details Included in Postnuptial Agreements?

The contents of a postnuptial agreement must be detailed. They should clearly outline how you and your spouse want matters if the two of you divorce.

In this section of this article, we’ll discuss the details commonly included in postnuptial agreements. Keep them in mind to ensure that you don’t leave out something important

The Terms of Asset Division

Arguably the most important details included in any postnuptial agreement are the ones that outline how asset division will work. Be as specific as you can be when providing these details.

Provide specific monetary figures and clearly indicate which properties and other assets go to which spouse. There’s no such thing as being too meticulous in your postnuptial agreement. Lay everything out in detail so they cannot contest them during the divorce proceedings.

The Handling of Debt

After getting married, new couples may take out loans to buy a new home or start a new business. Both parties may have also accumulated credit card debt throughout the marriage.

The two sides need to agree on how to handle those debts following the divorce. They need to agree on who will be responsible for which loan or how the payments will work if both will share the responsibility of all the debts.

The Transfer of Assets if One Party Dies

It’s not the most pleasant topic to talk about, but it is one worth broaching. Unexpected deaths happen all the time, and it’s important to acknowledge that in your postnuptial agreement.

Indicate how you wish to handle certain assets if you die unexpectedly during the marriage. Your spouse should do the same thing. Including those details in a postnuptial agreement will make a potentially difficult time a bit easier to manage.

The Terms of Spousal Support

Spousal support is a topic that gets a lot of attention during divorce proceedings. One side may want the other party to pay X amount while the other is saying that the amount requested is too high.

Those discussions can break down and become acrimonious in a hurry. Prevent things from heading in a bad direction by indicating how to handle spousal support in the postnuptial agreement you and your spouse sign.

Can the Terms of Custody and Child Support Be Included in the Postnuptial Agreement?

Given that custody and child support are also often talked about during the process of divorce, one might assume that those topics can also be addressed in a postnuptial agreement. In many cases, though, it may not enforce the terms of custody and child support.

Established laws and the courts themselves are always looking out for the best interests of the children involved in the marriage. The courts will evaluate the situation first before deciding regarding custody and child support. Regardless of how you and your spouse laid things out in the agreement, the courts can still get involved on behalf of the children.

How Can Both Sides Ensure That a Postnuptial Agreement Is Valid?

After you and your spouse come to a mutual agreement that drafting a postnuptial agreement would be best, the two of you now need to cooperate to ensure that it will hold up in a court of law. Keeping a few things in mind when crafting and finalizing the agreement will be crucial to ensuring its validity.

How the Two Parties Are Involved

The two of you are signing a postnuptial agreement. The key word there is “agreement,” meaning the two sides must be amenable to the provisions of the agreement.

If the court finds that one party was not given ample time to review the agreement or was forced to affix their signature while being threatened in some way, the agreement may wind up invalidated. It’s important that both sides truly collaborate on putting the agreement together because the court may ignore it otherwise.

The Postnuptial Agreement Is Not in Writing

When it comes to legal matters, it’s always important to get things in writing. Placing that document in front of the judge to examine increases the chances they will honor it during the divorce. Don’t forget about this when you’re working on the postnuptial agreement together with your spouse.

The Postnuptial Agreement Lacks Accurate Details

Postnuptial agreements that contain inaccurate information will not hold up in court. Before deciding if you want the agreement honored, make sure that it contains only accurate information.

You should also check to see if it mentions all the pertinent facts, so they are accounted for in the division of assets. To ensure fairness, both parties need to mention everything.

The Postnuptial Agreement Contains Invalid or Unreasonable Provisions

We have a lot to discuss here, so this is going to be a longer entry than the previous ones. When crafting the postnuptial agreement, you and your spouse need to outline provisions that are valid and reasonable.

First, the postnuptial agreement must be cognizant of the laws in the area. Unbeknown to you and your spouse, the agreement you created may be disregarding state laws. Once that happens, there’s no chance the court will acknowledge it.

As for the unreasonable provisions, they often come into play when discussing matters related to money. From a financial perspective, the agreement may be favoring one side over the other, and the court will not allow that.

When deciding how to divide your finances, make sure that both sides get a fair share. That will increase the chances of the court accepting the agreement. It’s the same thing with your other assets, so take the time to divide those fairly.

When Should You Consider Creating a Postnuptial Agreement?

Because prenuptial and postnuptial agreements are not commonly accepted elements of marriage at this point in time, bringing up the topic of signing one to your spouse can be a tricky proposition. Despite that, though, there are still reasons for you to consider drafting a postnuptial agreement.

Let’s talk about what those reasons are below.

You Want to Ensure Your Children Receive a Fair Share of Your Assets

In some cases, when two people get married, it’s almost like two previously separate families becoming one. You may have children from an earlier marriage, and the same may be the case for your spouse.

It’s not unreasonable for both of you to watch out for your children first. To do so, you may create a postnuptial agreement. Clearly indicate how you want your assets distributed so that your spouse and your children receive a fair amount.

You Want to Protect Your Assets

If you and your spouse already had significant assets before getting married, both of you may be interested in keeping them separate. You may want to keep any business ventures that you started on your own to yourself, and the same could hold true for your spouse.

In a situation such as that, the postnuptial agreement could prevent the divorce from getting any messier than it needs to be. The two of you can retain the assets you originally had prior to the marriage, and disputes won’t be necessary.

You Suddenly Received a Large Inheritance

You should also consider creating a postnuptial agreement if you recently received a large inheritance. That money was left to you by a loved one. You should spend it as you see fit.

Without a postnuptial agreement, though, they will treat the inheritance as another one of your joint assets. They may also divide it equally if you and your spouse end up divorcing. If you want to prevent that from happening, you must indicate that you received an inheritance in the postnuptial agreement.

You Did Not Want to Deal With Creating a Prenuptial Agreement

Planning a marriage can be a stressful and chaotic undertaking. You have so many things to worry about, including the venue, the catering, the guests, and that still doesn’t account for everything.

During all that, trying to draw up a prenuptial agreement can prove impossible to pull off.

Not everyone is open to the idea of signing up for a prenuptial agreement. Your spouse may mistakenly see it as a sign that you don’t have a lot of confidence in your marriage, and you don’t want that.

You Want to Secure Your Assets while Giving Your Marriage Another Try

According to Investopedia, there are cases where some couples will sign a postnuptial ahead of one more reconciliation attempt. The two parties are still trying to save their marriage, but they also both acknowledge that divorce is a real possibility.

At that point, you don’t have much to lose from signing a postnuptial agreement. Even if the reconciliation attempt does not work out, the agreement can still prove beneficial as it helps speed up the divorce proceedings.

You need to be detailed and cautious when putting together a postnuptial agreement. If you’re unsure about how to approach creating that kind of document, then please feel free to contact us at the Schill Law Group. Reach out to us today to ensure that the postnuptial agreement you enter is fair to both you and your spouse.

How to Divide Retirement Accounts after a Divorce

by John Schill | Oct 27, 2020 | Divorce

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How to Divide Retirement Accounts after a Divorce

Divorce is a difficult process in more ways than one. For instance, you’ll probably need to learn the significance of the terms such as qualified domestic relations order, QDRO, and QDRO process before it’s all said and done. And that’s only part of the new things you’ll pick up quickly if you want to protect yourself financially during and after a divorce.

We’re not going to sugarcoat things and say that learning about those things beforehand will make the whole ordeal easier. The reality is that the divorce will likely still be hard on you. What’s important, though, is that you’re doing all you can to preserve your finances while also giving yourself a sturdier leg to stand on moving forward.

Learn more about how dividing retirement accounts work during a divorce and prepare yourself properly for what lies ahead.

What Is Considered Shared Property and What Is Not?

Before we get to the machinations of dividing retirement accounts, we first need to determine which funds are subject to the divorce proceedings. Labeling those assets properly matters during the process of division.

Let’s start by identifying the assets that don’t count as shared property.

The courts do not consider funds that you receive as an inheritance or as a gift from someone as shared property. They do not need to be factored into the equation when the time comes to divide everything equally.

The assets that were under your name before you got married will also remain as your sole property.

Where things get a bit trickier is when you’re trying to portion out the funds in retirement accounts. Some of the funds found in there could be subject to division, while others may not.

If there were funds already present in your retirement accounts prior to getting married, they would regard those as separate properties. They will not be included in the calculations when the assets are divided.

The assets considered are the ones added to your retirement accounts throughout the marriage. They will also fairly divide other assets that were accumulated by both parties during the marriage.

How Retirement Accounts Are Divided

The process of divvying up the funds inside retirement accounts during a divorce will depend largely on what kind of account it is. To be more specific, it will depend on whether you want an individual retirement account (IRA) or a qualified plan divided.

Let’s start by discussing IRAs first because they are relatively simpler to divide and transfer.

Dividing IRAs

When it comes to dividing IRAs, both parties in the divorce will first need to specify which of their accounts count as such. The court will then take over from there.

The court’s role is to divide the assets included in the IRAs. They will determine how much you receive and how much your ex-partner will receive. Once again, the assets accumulated during the marriage are the ones they will count.

Dividing the funds included in IRAs is simple enough. Transferring them to different accounts is a bit more complicated.

Transferring the Funds from IRAs

You have two choices here when it comes to how they will transfer the funds from the IRAs.

First off, you could opt to spend the money you’re getting from those IRAs right away. In that case, prepare to pay some taxes.

As the recipient, you will pay income taxes on that new money that came in. You will likely pay a premature penalty since you are opting to withdraw the funds early.

It’s worth pointing out here that you may also end up paying those taxes and penalties if you’re not careful. Failing to indicate that you want those funds transferred to a separate IRA will result in the money being given to you right away. Because of that, you’ll still pay the taxes and penalties.

To avoid those taxes and penalties, you should indicate that you want a transfer incident. Upon deciding that you want the funds moved via a transfer incident, they will go from your ex-partner’s IRA to your new account. They will not ask you to pay for anything at this point if you decide to go with a transfer incident.

However, you will oversee how to use the funds once they transfer them to your new account. You can still take the money out ahead of schedule if the need arises but know that you’ll need to pay a possible penalty then. Your ex-partner will no longer have any say over how you use that money, and they will also have no other tax obligations.

Dividing Qualified Retirement Plans

Dividing an IRA is one thing. Both sides know how much money their IRAs contain, it’s easy to divide them between the two parties.

But what happens if the money isn’t available right away? In some cases, retirement assets are tied up in their retirement plans.

To resolve that matter, you can secure something known as qualified domestic relations order.

What Is a Qualified Domestic Relations Order?

The qualified domestic relations order, also known as a QDRO, is an order handed down by the court that indicates how they will disburse certain funds. More specifically, it lays out instructions for how the funds you’re entitled to that are currently in your ex-spouse’s retirement plan will be handled.

The QRDO can be used to dictate how your ex-spouse’s retirement plan will pay for their share of child support, alimony, or even cover for property rights that they could not divide equally. You can also have the funds funneled into a new retirement account you’ve set up.

Similar to transfer incidents, funds moved through QRDOs are tax and penalty-free. Note that funds coming from your ex-partner’s retirement plan that is not being transferred by a QRDO will still be subject to taxes and penalties.

As the recipient of the funds from your former spouse’s retirement plan, you have additional responsibilities to take on as well. The good news is that the most you’ll need to do is make regular reports about the payments you’re receiving. It’s an added chore, but one you should handle easily.

The Limitations of Qualified Domestic Relations Orders

You cannot automatically assume that the retirement plan your ex-partner has can be subjected to a qualified domestic relations order. Those orders don’t cover everything.

QDROs are limited only to qualified retirement plans as designated by ERISA or the Employee Retirement Income Security Act. Those retirement plans include defined benefit plans and defined contribution plans.

Dividing Defined Benefit Plans

Defined benefit plans are sponsored and managed by the employers. The employers themselves will usually share the formula they’re using so that their employees have a good understanding of how much they can expect to receive in the future.

According to Investopedia, you can use factors such as an employee’s salary and employment history to come up with the figure for the defined benefit plan. You should also know that you cannot withdraw the funds from a defined benefit plan easily. Those plans usually designate a specific age when they pay out, so calculating their final value can be put off until then.

Dividing the funds from defined benefit plans is hard to do because of how they are structured.

There is no set value to provide. Because of that, they will need to calculate to determine how much you are entitled to. Those calculations will be quite complex since they should only account for the benefits accumulated while the marriage was in effect.

The amount of money you receive from a defined benefit plan can also be determined by how you want it paid out.

You can opt to have the payment deferred and wait until the plan reaches maturity before claiming your share. As the ex-partner, you can have the option of claiming your share now, depending on the value of the defined benefit plan.

Regardless of how you want the benefits paid out, the court will still be the one to decide how to divide the funds between you and your former spouse.

Dividing Defined Contribution Plans

Compared to defined benefit plans, it’s easier to portion out defined contribution plans between two parties. The main reason is that the amount is clearly defined.

Employees contribute a fixed percentage or amount of their salary to their defined contribution plan. So, it’s easy to calculate how much one party has contributed to their plan over the length of a marriage, and that amount can be divided.

Investopedia does note that there are cases where the employers match their employees’ contributions to boost their benefits. You may get those additional contributions as the former spouse.

The court will again be the one in charge of determining how they divide the money from a defined contribution plan.

How to Secure a Qualified Domestic Relations Order

Given that there are other parties involved in the handling of retirement plans, securing a QDRO is not as straightforward as getting an order from a court. The plan administrator will be involved, and you will require the help of an attorney at this point.

You want to start working with an experienced attorney at this point because of how intricate retirement plans can be. Attorneys who haven’t spent that much time studying retirement plans may miss something important that, in turn, could cost you a good chunk of money once you finalize the divorce.

Leave the drafting of the QDRO to an attorney who has already dealt with retirement plans extensively in the past to ensure that you are getting your fair share. Opting to have an attorney take care of that will also free you up to focus on other matters that are related to your divorce proceedings.

Additional Tips for Securing Your Fair Share of Funds from Retirement Accounts

Working with a knowledgeable attorney is how you can avoid getting the short end of the stick during asset division. Author, businessman, and financial expert Dave Ramsey has additional tips you can follow to protect your fair share of the money.

Secure the Separation of Finances Immediately

Once you and your spouse have decided that your marriage is over, you should move right away to secure your finances. This means closing any joint accounts the two of you have and securing your portion of retirement plans as soon as possible. Acting this way will prevent your ex-spouse from potentially driving down the amount of money you are supposed to receive.

In addition to those actions, you may want to freeze your credit as you’re going through the divorce proceedings. That should prevent your ex-partner from pulling any funny business, such as taking out loans under your name.

Get Everything Down in Writing

You and your ex-partner reaching an agreement regarding how you’ll divide your assets would be ideal. That’s not something you typically want to leave up to the courts.

However, you shouldn’t buy into everything your ex-partner is saying, either. If the two of you do have an agreement, insist on getting it down in writing and make sure that it’s legally binding. That will ensure it holds up in court, and you don’t end up getting blindsided.

Educate Yourself about Retirement Accounts

Remember that those QDROs are helping you receive money from retirement plans. Now would be a good time to learn more about those retirement plans if you haven’t started reading up already.

While you’re at it, you can also use this time to find out how to best use that money. You may have a tough time adjusting to living on a single income again and saving up for your future following the divorce. Find out how you can best use that money to keep yourself financially stable.

The division of retirement accounts following a divorce can turn into a complicated undertaking. Enlist the help of experienced attorneys to make it more manageable. Reach out to us at the Schill Law Group and allow us to help get those financial matters sorted.

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