Prenuptial Agreements

In this day and age, everyone is looking for a way to safeguard their assets. It’s no wonder that prenuptial agreements are becoming more popular. A prenuptial agreement (prenup) or premarital agreement is a contract that a couple sign before they get married that lays out how the property will be divided in the case of divorce.

Why sign a prenuptial agreement?

Apart from safeguarding your assets, prenuptial agreements can also serve other functions. For instance, they can protect you from the debts of your spouse and determine how the property will be divided in the case of a spouse’s death.

Prenuptial agreements have also been known to protect the inheritance rights of children and grandchildren from previous marriages. Another advantage that comes with such a contract is that it can be used to outline the financial responsibility of each party.
It also protects any personal business or professional practice that you come into the marriage with from being divided upon divorce.

Disadvantages associated with prenuptial agreement

The biggest disadvantage of signing a prenuptial agreement is that you may not be able to inherit anything from your spouse in case they die. You also won’t be able to claim any profit your spouse’s company will experience due to your contributions.

Another thing that needs to be taken into consideration is the fact that in the early stages of engagement a spouse can be so in love that they may agree to terms that may not be in their best interests only to regret later on.

A more immediate negative effect of signing a prenup is the general sense lack of trust it creates within the marriage.

When is a prenuptial agreement taken to be invalid?

This agreement is considered invalid when there is no written form of the contract, it is not signed before the wedding, a spouse was pressured into signing it, or he/she didn’t read it. Invalidity also comes about when a spouse is not given adequate time to review the document before signing it, or they hide some pertinent information.

Another ground for invalidity is the lack of independent counsel for any of the parties.

Alternatives

If you don’t desire to sign a prenuptial agreement but still want to protect yourself, you have options. You can instead decide to get domestic asset protection trusts. Either way, you will need to get yourself a good lawyer who will ensure that your best interests have been put into consideration.

source http://www.winterwoodlodge.com/prenup/

All About Mistrials

Mistrials: digging into them
In life, we can get at crossroads. We are unsure of the next step to take. The judge and the jury too can get stuck in a case. Circumstances may force them to give a non conclusive decision. In such a situation, the case is said to have had a mistrial.

Circumstances that lead to a mistrial
Where death of a member of the jury or the attorney occurs, a mistrial may result. There may be some irregularities during the selection of the jury which may be discovered later when the proceedings are way underway. It will not be just to let the same jury decide on the case. Thus, a mistrial results.

Some remarks by the prosecution may completely damage benefit of doubt for the defendant by the jury. This means the jury already find the accused guilty before the case is concluded.

Juror misconduct: for example, one of the jury maybe making contacts with one of the parties which can lead to prejudicial decision.

Deadlocked or hung jury: this is where they are insufficient jurors voting to one way or the other so as to deliver a verdict. The judge may ask them to deliberate further but if no verdict is reached, the judge declares a mistrial due to hung jury.

What happens to the defendant in case of a mistrial?
The defendant is neither acquitted nor convicted. The only option is to have the case retried. It is important for a juror not to compromise his stand just because a mistrial will result. If they do, the defendant maybe convicted for a wrong a juror considers they did not commit. It is easier to retry a mistrial than a conviction.

When does a mistrial require a retrial?
Hung juries: The judge thanks the jury for their effort, excuses them and sets a date for the next hearing of the case. It is solely the decision of the prosecution to decide whether they would want a mistrial. Most of the time, the parties will negotiate a plea, which may well be dismissed by the prosecutor.

Misconduct by prosecution: This is a very rare occasion and in case it occurs, the defense lawyers can demand for a mistrial and possible acquittal of the defendant. When a mistrial is granted, a retrial will definitely result.

Necessity: Some circumstances may force the judge to grant a mistrial in the case. In this case, the defendant is not protected against double jeopardy (where a defendant is prosecuted and tried twice for the same crime based on the same evidence).

source http://www.winterwoodlodge.com/mistrials/

Lawyer Disbarment

The worst thing that can happen to a lawyer’s career is disbarment. This is literally revoking a lawyer’s license and therefore preventing them from practicing law in their jurisdiction. Due to the obvious weight of this punishment, it is never done lightly.

For a lawyer to be disbarred, they have to have committed a transgression that would be deemed grievous in the eyes of fellow lawyers.

Grounds for disbarment
1. Stealing from clients
Since the practice of law depends greatly on there being a level of trust between a lawyer and his/her client, it would be very damaging for a lawyer if they were found to be stealing from their client. In fact, this is one of the most common reasons for disbarment.

Stealing from the client is especially offensive because a lawyer is supposed to put the interests of their client before their own.

2. Crimes that involve moral turpitude
These any felonies or misdemeanors that cause people to doubt the lawyer’s honesty, trustworthiness or general moral character. These usually include convictions associated with corruption, violence or breach of trust.

Ultimately, crimes that involve moral turpitude vary from state to state.

3. Personal misconduct
Behavior such as verbally or physically assaulting anyone is grounds for disbarment. This includes shouting profanities at someone or hitting them. Whether it’s a client, court employee or a stranger on the street, it is better to keep your mouth shut and your hands off.

4. Fraud
Other types of fraud such as getting paid for something you didn’t do are also grounds for disbarment. This is because the moral standing of a lawyer should be above reproach. In the case that you are unable to do what your client needs, you are required by law to refund them.

5. Breaking bar association rules
As a lawyer, if you break the bar association rules in your jurisdiction, you can be disbarred. For instance, in some states, if a lawyer lies in their bar application, they can be disbarred. A lawyer who doesn’t pay bar dues or refuses to participate in continuous education required by the bar is also at risk of disbarment.

What disbarment means for you
In the United States, you can be disbarred in one state but still be able to practice law in other states. However, in most states, disbarment in one state is grounds for disbarment in another. Depending on your jurisdiction, you may be able to reapply for the bar immediately after disbarment or after five to seven years.

Unfortunately, in some states, you can be disbarred permanently.

source http://www.winterwoodlodge.com/lawyer-disbarment/

Three Surprising Facts About Bail

If you have ever heard about bail in the past, then you might have an understanding of how it works. After a person’s arrest, one of the first hearings they face is an arraignment. A judge decides how much that person will have to pay to stay out of jail. This fee can range in price depending on the crime. In a lot of scenarios, it is too much for the respondent to pay. That is when a bondsman usually comes into play. The bond agent covers the defendant’s release price for a fee, and the court lets the accused out of custody until the case is over. On the surface this process may seem simple, but, there are a few behind the scene facts that you may not know about bail.

There is No Money Involved
For starters, a defendant or bond agent may not ever need to give the court money. It may sound counterintuitive, but the court sometimes allows people to cover bail using a surety. This contract pledges that the stakeholder has the funds or resources to pay up, but only if necessary. This works because the courthouse almost always refunds the cost once they conclude the case. The court only requires the actual money when the defendant skips court or violates the terms of the agreement.

The Time to Pay May Expire
If a defendant does not pay the court within a certain period, the opportunity may disappear. Trials can last for several months or longer, but the bail does not stay valid throughout that time. The court will assign the amount of time a person must pay. If the defendant fails to meet that deadline, he or she will remain in jail with no hope for release for the remainder of the hearings. Bail bond agents can pay the court within hours and facilitate the release the same day the defendant hires themS.

No One is Subject to an Unfair Bail
Even though it can seem like the court sets bail very high in some cases, the amount can never be unreasonable. Most states base the cost on the type of crime. Several other factors may include the person’s risk to society, or if he or she is liable to go on the run. However, the Eighth Amendment of the Constitution restricts judges from setting bail at an unusual or irrational sum. This does not mean it must be a price the defendant can afford.

If you are still actually wondering how do bail bonds work, or how to hire a bail company, hopefully this post helped. We hope that you never need a bail bondsman, but if you do, it’s important to know the facts! Please reach out if you have any questions about this process. We have know a bunch of professionals that would be glad to help in anyone’s time of need.

source http://www.winterwoodlodge.com/three-surprising-facts-about-bail/

8 Types of Pro Bono Work

One of the most common questions we get is about pro bono work. It is a difficult question to answer, but here are 8 common types:

1. Animal Rights
Animals are incapable of advocating for themselves in our system. There are many organizations and pro bono opportunities to assist abused animals, prevent further abuse, and criminalize animal abusers.

2. Domestic Abuse
Domestic abuse is an extremely complicated topic. It is often difficult for victims of domestic abuse to leave their abuser due to fear, financial dependency, children, guilt, and/or complex emotional attachment. Victims of domestic abuse require special assistance to protect them and navigate through our legal system. There are many organizations and pro bono opportunities to assist victims of domestic abuse and bring their abusers to justice.

3. Child Abuse
Child abuse is one of the most popular areas that lawyers choose to perform pro bono work. Children of all ages require special protections to stop and prevent child abuse. The pro bono opportunities to assist children are seemingly endless.

4. Assisting the Elderly
Elderly individuals are often disenfranchised and isolated. Many are more vulnerable to scams and physical or emotional abuse. There are many pro bono opportunities available to assist the elderly from criminalizing elder abuse to providing simple legal advice for free.

5. Housing or Tenants’ Rights
Many people who are facing foreclosure or living in horrible conditions cannot afford an attorney. There are many pro bono opportunities available to counsel individuals about their rights or assist them in housing proceedings.

6. Immigration Rights
Immigrants face a special set of obstacles in our legal system. For example, there is often a language and culture barrier that complicates things. Frequently, they are also unaware of their rights or the resources available to them. There are many pro bono opportunities to assist immigrants with legal paperwork/applications and in immigration proceedings.

7. Criminal and Prisoners’ Rights
Criminals and prisoners often face abuse or lack of appropriate access to legal assistance. There are many pro bono opportunities available to fight police brutality, overturn wrongful convictions, and advocate for prisoners’ rights.

8. Assisting Disabled Individuals
Many disabled individuals require special assistance to enforce their rights and protections. Some disabled individuals may also be more vulnerable to abuse. There are many pro bono opportunities and organizations that assist disabled individuals, including veterans.

Hopefully this helps clear the air!

source http://www.winterwoodlodge.com/8-types-of-pro-bono-work/

The Impact of Smartphones on the Judiciary

As the 21st century advances, and the rapid proliferation of technology such as smartphones continues to revolutionize everyday life, courtrooms and legal experts must prepare to deal with ever-changing social and legal landscapes. Certain technological advances represent more challenging obstacles than others, and the judicial system must remain both principled and flexible in order to adequately tackle the legal issues of tomorrow.

The advent and ensuing rapid spreading of smartphones throughout the developed world poses a series of worrying questions for legal experts. Political activist, defendants in criminal and civil cases, and legal scholars and actors have all made use of smartphones to further their agendas. Now more than ever, more efficient methods of communication and data-gathering stand to outperform more dated methods, potentially leaving the unprepared legal actor behind, and, worse, seriously disadvantaged in a court of law.

Smartphones have allowed both everyday actors and legal specialist to force conversations about previously uncomfortable topics, and permit extraordinarily intrusive methods of gathering data. Consider eyewitness testimony, which has long served as a bastion of evidence in both civil and criminal litigation. Once unreliable testimony, given from a witness present at or near the scene of a crime, is now often backed up with videos and pictures taken by said witness with their phone, often during or moments after a crime or dispute has taken place. Gone are the days of he-said she-said testimony, where one witness’ word is set against another, as more likely than not every word of, say, a domestic dispute can be recorded by the next-door neighbor.

Police departments throughout the United States in particular have come to experience this change firsthand, as instances of fatal shootings are recorded on smartphones, before being uploaded to social media within minutes of their occurrence. Officers under investigation who could once claim in a court of law that they acted under a potential threat to their livelihood may now be contested by video footage of fatal events. Not all of technology’s impacts are negative, however; those same law enforcement officials may be legally exonerated by footage recorded by their bodycams or dashcams, which are enjoying a renaissance of cost reduction and quality enhancement.

Politicians, too, now live in a world where their every action is under surveillance, and where each word they’ve spoken, or message they’ve sent, can be documented and presented in a court of law against them.

The implications of this phenomenon reach the greatest heights of American government; the 9th US Circuit Court of Appeals recently noted that the 45th president of the United States’ online tweets, sent from his smartphone, were used as evidence to rule against him in his administration’s appeal to lift an injunction on an executive order. As more and more political and judicial actors turn to their trusted digital devices to voice their opinions on the web, judges and lawyers will be waiting to pounce on potentially damning statements.
In preparing themselves for the digital renaissance which is already well underway, legal actors will need to formulate new statutes and strategies for dealing with data and potentially incriminating evidence posted in droves online.

Law firms would be wise to invest heavily in technological training for aged executives who may be unfamiliar with new advancements, while lawyers must be prepared to interfere with their client’s digital habits, should they have the potential to derail a case. With or without the consent of judicial experts, the digital revolution will continue to shake the foundations of our legal system for years to come.

source http://www.winterwoodlodge.com/the-impact-of-smartphones-on-the-judiciary/

Should The Death Penalty Be Abolished

A lot of debate exists pertaining to the effective of the death penalty as far as deterring potential felons is concerned, and whether it is humane or not. Criminology experts believe that the death penalty no longer deters criminals from engaging in felonies. Despite the surge in the number of executions across the world, this form of punishment seems to no longer make sense any more. Here is why the death penalty ought to be abolished.

Executions are Less Retributory Than Life Sentences

Through interactions with prisoners and former inmates, one thing that you will take note of is the fact that prison sentences are hard. Actually, prison sentences are regarded to be worse than death itself because inmates typically spend most of their time locked up in tiny cells and with little communication with the outside world. This is retributory enough since it makes an offender suffer for his/her crime. Subjecting someone to the hangman’s noose or a lethal injection isn’t retributory in any way.

The Insensible Nature of Death Penalty Litigation

Research indicates that the death penalty litigation costs taxpayers way more than trials seeking life sentences without parole. For instance, Colorado recently spent $3.5 million hearing evidence about death penalty cases. This is more to an average of $150,000 that the state would have spent if it didn’t have the death penalty.

The huge financial outlay involved arises from the fact that death penalty cases involve lengthy appeals that may take up to one thousand days. This means that a significant amount of courtroom resources will end up being used. State coffers are similarly stretched paying jurors, judges, and other judicial officers who are involved. This burdens the existing criminal justice system, which is already overstretched.

Death Penalties Punish Families Rather Than the Offenders

On average, the resolution of a death penalty case may take up to 25 years. This means that for a long time, family members will be entwined in the criminal justice system, something that greatly disrupts their life. If the accused is ultimately sent to the gallows, it is the family members and friends who are left to deal with the grief that accompanies the loss of a loved one. This means that rather than punishing an offender, the death penalty punishes his/her family, friends, and loved ones.

Uneven Application

Generally, death penalties are never evenly applied. For a start, only 19 states in the U.S do not use capital punishment. In states where capital punishment can be used, it is the decision of the prosecutor to decide whether or not to pursue a death sentence. Prosecution discretion ought to be wisely applied because otherwise, it can be abused. Its proper application can help shorten trials besides eliminating the numerous appellate issues that often accompany death penalty litigations.

source http://www.winterwoodlodge.com/should-the-death-penalty-be-abolished/