Commonly Asked Questions
No. There’s a common misconception that children can choose which parent to live with when they turn 12. That is not the case. However, under Pennsylvania’s Custody Factors, one of the factors that a court must consider when making a custody determination is “the well-reasoned preference of the child, based on the child’s maturity and judgment.” It is up to the court as to how much weight to give this factor, and it is not necessarily the “deciding factor.”
Common law marriage was abolished in Pennsylvania as of January 2, 2005. That means that no new common law marriages can be entered into as of that date. However, Pennsylvania still recognizes common law marriages that were entered into before January 2, 2005. It is important to note that there is no specific length of time that you have to live together to establish a common law marriage. To establish a common law marriage, there must have been an exchange of words in the present tense expressing an intent to be married (“You are my husband/wife/spouse.”), and it must have occurred on or before January 1, 2005.
No. At this time, while Pennsylvania law allows a single person to adopt a child, it does not allow a person who already has a child with someone else to legally make themselves a single parent. If you wish to terminate the parental rights of the other party, there must be someone else who is willing to adopt in their place. This is true even if the other biological parent would agree to terminate their rights. The Pennsylvania Supreme Court has further specified that the person who is adopting in place of a parent cannot be a grandparent. For example, Mother cannot terminate Father’s rights so that Grandfather can adopt in Father’s place. Put another way, Mother and Grandfather cannot legally be the child’s parents together.
If papers were mailed to you explaining that you have been charged with a crime, do not panic. Call a criminal law attorney as soon as you can. Find an attorney who will offer you a free consultation. Bring to that consultation all of the documents that have been sent to you regarding the charges, and anything else that might be relevant.
Generally, the kind of penalty depends on the level of the charge. If your charge is a summary offense, the penalty is normally a fine – but can sometimes include incarceration depending on the specific charge. The penalties for misdemeanors and felonies can be predicted by calculating the crime’s Offense Gravity Score, determining your own Prior Record Score. An experienced criminal defense attorney can help you with these calculations.
If you are found guilty or plead guilty to a crime, this will be reflected on your record. However, some programs like ARD and PWV will result in the crime being expunged from your record after a period of time and the meeting of certain conditions. In other instances, you may be eligible to have your record expunged. An attorney can help you determine whether you are eligible for expungement and assist you with the process.
Yes. Although laws against cannabis use have become far less stringent in recent years, driving with cannabis’ active ingredient (THC) in your system continues to be against the law – and is actually punished with greater severity than are most alcohol related DUIs.
Furthermore, the procedure for testing whether a driver is “impaired” by marijuana is less forgiving than for alcohol. For cannabis, officers check for impairment by their own observations, just as with alcohol – they look for bloodshot eyes, lack of coordination, the smell of the drug, an admission of use, etc. Unlike with alcohol, however, there is no breathalyzer for marijuana. Therefore, a blood test alone must be relied upon.
If the officer finds probable cause to suspect you are under the influence of marijuana (which will definitely be present if you admit to smoking marijuana), you will be made to go to a medical center to take a blood test. The blood test for cannabis reports nanograms of THC. If a single nanogram is present, this could be enough to establish your intoxication and thus your guilt. If 5 or more nanograms are present, your case will be very difficult to fight.
Unfortunately, because different people process cannabis in different ways and over different periods of time, you could test in the range for a cannabis-related DUI even if you have not consumed the drug for many days. In such a situation, it will be the defendant’s responsibility to overcome the state’s scientific evidence of intoxication. This is a difficult thing to do.
The punishment for DUI with a controlled substance (including marijuana) is equivalent to that of a DUI with the highest level of alcohol intoxication. If it is your first ever DUI, you will most likely qualify for ARD. However, if you do not, it will be very difficult for you to avoid some brief period of incarceration or house arrest.
The upside is that you can get a DUI for marijuana, that a DUI for marijuana is harsher than most alcohol-related DUIs, and the state’s burden for proving that you were intoxicated is very low.
If you smoke marijuana, the best advice is to avoid driving altogether – but particularly for several days after you have consumed it. Short of this, if you are not intoxicated from marijuana, do not tell a police officer that you “smoked yesterday,” or “smoked 9 hours ago.” This will be enough to establish probable cause for a blood draw, and the blood draw will most likely be enough to convict you of DUI – even if you swear you were not high anymore.
We certainly recommend that you retain the services of an attorney even if you intend to plead guilty. While the court system generally tries to be fair, everyone involved in your case aside from your attorney has an agenda that may conflict with your best interests. Police officers want their cases to resolve favorably, as do district attorneys. It is not their job to help you if that means undermining their own case. Judges are restricted from offering advice to either side – thus, while they will be as fair as possible, they will not go out of their way to ensure that you are receiving the best possible outcome.
Thus, you should retain an attorney even if you plan to “be cooperative.” An attorney can determine whether you should plead guilty to all charges, or ask that others be dropped in exchange. An attorney can help to mitigate your punishment, determine whether you qualify for leniency programs, and just generally attempt to reduce the damage to you. Finally, an attorney can answer the questions that will inevitably occur during the life of a criminal case.
Finally, judges and prosecuting attorneys will generally encourage you to get an attorney throughout the process. It may seem strange, but they see a defendant who retains an attorney as more cooperative and responsible than those who do not. This is so even if you openly plan to plead guilty. Judges and prosecutors know that their jobs are different from that of a defense attorney, and worry that a defendant who refuses to hire an attorney will later argue that the judge or prosecutor misled or tricked them, once they realize that they are still going to receive a harsh punishment.
The answer to this question depends on the strength of the prosecution’s case and on the wishes of the client.
If the prosecution’s case is weak and the charges are not very serious, “fighting the case” may be as simple as pointing out the case’s defects to the prosecution, and either having the case dismissed or agreeing to plead to a minor charge, like a summary offense.
If the prosecution will not acknowledge a case’s obvious weakness, then a trial will be necessary for a just outcome. Although no trial is simple or predictable, if the prosecution’s case has obvious errors, pointing these out to a judge or jury may be relatively straightforward, and thus not so costly in terms of time and money.
If the prosecution’s case is strong, more work must be done by the defense. This means gathering evidence to support the defendant’s side of the story – which could require conducting interviews, analyzing police and medical reports, and even hiring our own private investigators and experts to counter the narrative offered by the state.
This is where the wishes of the client come into play. If the charges are not very serious, it may not be worth the money to make such extensive preparations. For instance, if you are accused of possession of drug paraphernalia and are eligible for Probation Without Verdict, and the only way to effectively fight the charge would be to hire an expert that charges $5,000 for a report on whether a certain kind of pipe is actually used for marijuana, the client may wish to apply for PWV – even though the client is not actually guilty. The outcome of PWV is dismissal and expungement, which is pretty close to the consequence of acquittal, but for a few thousand dollars less.
If, however, the client is accused of possession with intent to deliver and is facing the possibility of spending several years in state prison, then the client may be more interested in spending the money necessary to build a solid defense case.
Our office offers a free consultation to discuss your case. Once we have spoken to you and have an understanding of your specific needs and circumstances, we will quote you a retainer fee in the event that you would decide to hire us.
A regular bankruptcy case filed by an individual, or husband and wife, is under Chapter 7 of the Bankruptcy Code. Most debts that you have at the time you file are “discharged” or forgiven. You keep “exempt” assets/property, which for most means you do not lose any assets/property that you own when you file.
A Chapter 13 is a personal reorganization, which can include a small business, filed when circumstances are such that a Chapter 7 would not work for you.
A Chapter 11 is a business reorganization for medium to large businesses.
First Reason. Most Chapter 7 cases filed (about 95%) are classified as “no asset” cases, which does not mean the people filing have nothing, but that their assets (real estate, contents of their home, bank accounts, etc.) are worth less than the limits imposed by law (it is considered “exempt property”). But if you own assets and their value is more than what the law lets you keep, then you might file a Chapter 13 in order to keep the assets you might lose in a Chapter 7. (If you don’t care about those assets, you file a Chapter 7.)
Second reason. If you are behind on your mortgage, and need time to catch up, and want to keep your house, then you might file a Chapter 13.
Third reason. If your household income is “too high”, as defined by the bankruptcy law, you might be forced to file a Chapter 13, and not allowed to file a Chapter 7.
In a Chapter 7 case four to six months is the average time for the case to take.
In a Chapter 13 case, most plans are either for three years or five years.
In a Chapter 7 case almost all of your debt is discharged-eliminated. The exceptions, and debts which you will continue to have to pay, are alimony and child support, nearly all student loans, and most taxes (income taxes more than three years old, for which timely tax returns were filed, can be discharged/forgiven). But bankruptcy does not eliminate a lien or mortgage that you agreed to. For example, when you file bankruptcy your car loan is forgiven-you don’t have to pay it-but the lien on the certificate of tile to the car loan company is not eliminated. Unless the payments are made, the loan company can take the car, but they cannot make you pay anything. So if it is a car you want to keep, you continue to make your payments. If it is a car you don’t care about, you let them take it, and stop making the payments.
Filing a bankruptcy petition generally stops most lawsuits that are pending, and stops most new ones from being filed. (It does not stop criminal cases or fines.)
In a Chapter 13 filing a bankruptcy petition also stops most lawsuits, including any mortgage foreclosure action or efforts by a finance company to take your vehicle. It may give you up to five years to catch up on past due payments on your house or vehicle in a plan your propose. There are legal requirements for a Chapter 13 Plan which we will discuss with you when you come in for your free consultation.
In our office we give you the bottom line price of attorney fees and costs. The Court filing fee is approximately $300, and some miscellaneous fees can be as much as an additional $100. But the price we quote you, includes attorney fees and all costs. The only exceptions are rare cases, which are specified in our written fee agreement, a copy of which we give to you at the free initial consultation.
In most cases no, you will not lose your home. The answer depends on how much equity you have in your home. The equity of your home is its value, less any valid liens (mortgages, taxes, judgement liens) on the house. In most cases the law allows you to keep your home if the equity is $24,000 or less, $48,000 is you are married. If the equity is larger, you can still keep your house if you can pay the difference (the value over the exempt amount), or if you file a Chapter 13 Bankruptcy Case.
Yes, everything valued and listed in the petition can be exempted and kept by you. If you don’t list it, you run the risk of losing it and/or having your bankruptcy petition dismissed. You are required to list all of your assets (property) and all of your debts (loans).
Before you file bankruptcy wage garnishment is allowed for only a few debts: child support and alimony; taxes; student loans. After you file bankruptcy, and while your case is pending, most wage garnishments will end (but not child support or alimony).
No. Jail for non-payment of debts is prohibited by our Constitution. You can only go to jail for intentionally violating a court order. So if there is a court order for you to pay child support, and you have the ability to pay, and refuse, then you can go to jail. But if you owe a bank thousands of dollars and refuse to pay a court judgement stemming from a lawsuit, they cannot put you in jail.
There is no fixed rule, and it depends on the type of financial institution. Most banks will not give you a loan for five years after you file. Credit unions, however, if they were not listed as a creditor in your bankruptcy petition, do not follow that rule and will make loans to qualified borrowers.
If you list a creditor in your bankruptcy petition, the credit card is almost always cancelled by the company. And you are required to list all credit cards debts if you are carrying a balance. If you have a card(s) for which you pay the amount due in full each month, or have no balance, it is up to the credit card company to decide if they will let you keep your account open.
Most deposit agreements with banks give them the right to “set off” any debt from any deposits you have. So if you are behind on a loan, or if you file bankruptcy, they can take every penny from your bank accounts and apply it to their loan. That is why you should not keep your money in bank if you owe that bank money.
If you reaffirm a debt it means you agree to pay it, even though you have filed bankruptcy and your other debts are discharged. Court approval is needed. It is usually a very bad idea to reaffirm a debt.
You are required to list all of your debts, all of your creditors, as of the date your bankruptcy petition is filed. If you owe your attorneys any money, they must be listed, and then when you file you do not have to pay them. As a consequence, in all Chapter 7 bankruptcies, the full fee must be paid before the case is filed. (This rule does not apply to Chapter 13 cases.)
A preference is a special payment you make to a creditor, a payment which is not a regular monthly payment. It also includes payments made to family members or close friends within a year of filing your bankruptcy. If you pay back money you borrowed from your family, and not the other creditors, that is “preferring” them over the others. In that situation the person paid can be sued to give back the money, which is then divided equally among all of your creditors. Payments made after you file your bankruptcy case are not preferences. So wait to pay back your family after you file; do not make payments before you file.
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Kayden Vaporis and Associates is a full-service law firm based in Indiana, Pennsylvania, the seat of Indiana County. Our office at 26 Sixth Street is just a brief minute’s walk from the courthouse.
We have attorneys on our roster who specialize in bankruptcy (the best in the county), Criminal Defense, and all types of family law, but in particular adoptions, and contract experts to handle Estate Planning, Wills and Probate. No matter the case, we can tackle it.
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The Attorneys at Kayden Vaporis and Associates have deep know-how of Western PA court systems making them the best lawyers to hire when you need experience to fight on your side.