Most people have heard of the Fourth Amendment. Many are familiar with its protection against unreasonable search and seizure.
Yet a significant number of misconceptions exist about when and how law enforcement can conduct a search of a suspect. It is a complex area of the law, and the exact answer depends on the circumstances surrounding your arrest. The answer can even depend on where you were arrested, as state courts interpret their own constitutions prohibiting unreasonable searches and seizures differently.
The Fourth Amendment grants the right of the people to be secure in their persons against unreasonable searches and seizures. In order to legally search a suspect, a law enforcement officer must have probable cause and obtain a warrant. However, there are exceptions to this, including:
Each of these exceptions has a significant amount of case law going back decades. There are additional exceptions, but a full list is beyond the scope of this brief introduction. The courts have been analyzing the Fourth Amendment almost since its inception. It is continually evolving. Recently, for example, questions relevant to technology, including searching smartphones, laptops and other personal electronic devices, have become a hot-button issue. The extent to which police can search electronic devices has been stated by the U.S. Supreme Court, but as new circumstances evolve, so does case law involving the Fourth Amendment.
There are a few well-established, clear rules regarding when a search is legal or in violation of the U.S. Constitution. For example, police officers cannot pull over a vehicle without any reasonable suspicion that a driver is committing a criminal violation. Similarly, police cannot usually enter your home to conduct a search without a warrant, unless one of the exceptions is applicable.
Most often, criminal cases involving potentially unconstitutional searches hinge on a few key facts and the court’s interpretation of the Fourth Amendment.
At Breeding Carter , our attorneys provide experienced criminal defense against various state and federal criminal charges. In every criminal case we take, we hold law enforcement accountable for violations of constitutional protections. Our lawyers believe that constitutional rights are integral to our way of life, and violations should not be tolerated in the criminal justice system. If you were arrested or searched in violation of your Fourth Amendment rights, we will work diligently and aggressively to get any evidence obtained against you thrown out of court.
You can call our Knoxville, Tennessee, office for a consultation at 865-670-8535. If you prefer, you can also request a consultation here.
When getting divorced after the age of 50, extra caution is needed during a property division settlement
When getting divorced, couples can be forced to figure out how to split their marital estate. Assets can be moderate or extensive, as in a high-asset divorce. Either way, proper care is important when making the decision about who should get what and how any transfers should take place. A wrong step can cost couples a large portion of their assets or savings. These concerns weigh heavily on the minds of persons over 50 who have less time left to work and make up any losses.
A husband and wife make the difficult choice to end their marriage. When identifying which spouse will keep or get which assets, the wife pushes hard to keep the family home. NextAvenue.org points out that this is often because women are focused on maintaining stability and a home can often represent that.
While this is understandable and common, it may not be in the wife’s best interest. According to the Huffington Post, the costs over time of taking care of a home can ultimately be more than the value of the asset at the outset. There can also be challenges for one spouse to refinance a mortgage into a single name, especially if that spouse must rely on the other for a portion of a future income.
In addition to a home, retirement accounts such as 401(k)s or pension funds are frequently the most valuable assets a couple may have together. Again, caution is urged before jumping to obtain a portion of these assets. Future taxation on distributions should be factored in as a large number of such accounts are funded with not-yet-taxed money. That means that for every distribution ultimately taken, the recipient spouse will need to pay taxes.
If splitting a retirement account does make sense in the end, the right processes should be followed. That entails the use of a qualified domestic relations order. A QDRO makes clear to courts, tax entities and any other agencies involved that the distribution of money is part of a divorce settlement versus a true early withdrawal. By doing this, additional taxes and penalties are avoided.
As many as one in four American marriages involving spouses over 50 end in divorce. This is per data from the National Center for Family and Marriage at Bowling Green State University. When a gray divorce is imminent, contact Breeding Carter for help.
More fathers across the nation are standing up to the legal system and demanding that they be given a fair chance to establish a relationship with their children. Although men have been fighting for child custody for generations, more fathers than ever before are prevailing. According to studies conducted by the Pew Research Center, the number of single fathers who have sole custody of their children has risen from one percent (1%) in 1960, to over eight percent (8%) in 2011. A recent article in Working Mother stated that now nearly fifty percent (50%) of fathers who seek sole custody in a divorce case are granted it. In Tennessee, men are joining the rest of the nation and demanding that their fathers’ rights be considered in child custody cases.
One reason for the increase in single-father households may be the shift of parenting roles that has occurred throughout the past sixty (60) years. The traditional family image of a working father and stay-at-home mother is a thing of the past. Hard economic times have driven many women toward the workforce. Now, many women have moved up the corporate ladder and earn more money than their spouses. This has created a situation where more fathers are spending time at home with their children and acting as caretakers, while mothers are the proverbial breadwinners. Though judges will carefully consider the all aspects of a child’s wellbeing when determining custody in a divorce case, this new trend has led to more men being awarded the role of the child’s primary caretaker.
Years ago, most states awarded custody of small children to their mothers based on the ‘tender years doctrine.’ This presumption indicated that children under the age of seven (7) years were better off in their mother’s care. According to a Working Mother special report, most states had banished this practice by 1994 and moved toward awarding custody based on the child’s best interest. In most cases, this involves a joint parenting situation. However, there are some situations where a judge may warrant that the child is better off with one parent over the other. Many judges use the following considerations when awarding child custody, as reported by ChildWelfare.gov:
Men who are seeking equal custody rights to their child may want to partner with a professional family attorney who has experience in dealing with fathers’ rights issues. While you may have a thorough knowledge of Tennessee state divorce law, an established attorney can prove highly valuable in helping to settle your child custody case.
Knoxville, Tennessee, couples who have endured or considered a divorce have been forced to face some very challenging realities. From concerns about child support and child custody to complex property division and more, the issues associated with divorce can leave many emotionally, physically, and financially drained.
According to the Centers for Disease Control and Prevention, the nationwide divorce rate is approximately 3.6 out of every 1,000 persons. In Tennessee, that number is greater at 4.3 persons per 1,000.
Divorce can be affected by many economic factors. These include a broad range of family complications such as parents leaving and re-entering the workforce, late marriages that bring with them debt and adult children, shrinking pensions, and new and evolving health care choices. The overall economy undoubtedly plays a large role in the field of domestic relations, and now demands ever-more financial decisions from former spouses who often times cannot agree on whether the house is warm or cold.
When the recession hit a few years ago, the national divorce rate declined. That trend was noted for three (3) consecutive years. During this time, many people claimed that a poor economy was – in some fashion – good for marriage. The belief was that challenging financial times brought people closer together, rather than pull them apart.
However, as the economy has begun to pick up, so too has the divorce rate. University of Maryland sociologist, Philip N. Cohen, has examined the effects of the economy on the United States’ divorce rate and speculates that the recent increase is due in part because people can once again afford to get divorced. He further asserts that the decline in the number of divorces during our last economic recession was not because people grew stronger in their relationships, but rather because couples did not have the financial ability to get divorced. In his report, he hypothesizes that approximately 150,000 divorces were delayed during those three (3) years simply for lack of financial reasons.
Based on data from the U.S. Census Bureau, from 1963 to 2011, the number of people over the age of fifty (50) who are divorced in America rose by over fifteen (15) percent. This trend has often been referred to as “gray divorce.”
Special issues accompany a divorce later in life. One of the greatest concerns is the need to protect important retirement assets when retirement is closest at hand. Proper processing of retirement accounts when divided in a divorce is necessary in order to avoid needless penalties and taxes, both of which can dramatically erode a couple’s savings if not handled sensibly. Understanding how and when to utilize a Qualified Domestic Relations Order (QDRO) or which assets to retain with regard to retirement accounts can have major economic ramifications on divorcing parties if not carefully considered.
Minimizing financial losses is just one reason to work with a seasoned attorney during a divorce. Many transactions involve time-sensitive processes and unique handling. If not conducted appropriately, the damage done by one misstep can often times increase the overall cost of a divorce unnecessarily.
Divorce can be particularly complicated when children are involved. Informing your child or children about divorce is a difficult task. According to Kids Health, an online guide for children with divorcing parents, it is common for a child’s feelings to be hurt when one parent decides to live somewhere else.
In some cases, children may have mixed feelings about divorce, especially if they have witnessed conflict between their parents. If the parents regularly argue, some children may even feel relieved after learning about a divorce. Whatever the situation, there are several important guidelines to follow when informing children about the decision to divorce.
The Huffington Post reports that key themes to remember include:
First, do not tell children anything about the divorce until the decision is final. Ideally children should not be told until a divorce agreement is signed and one spouse is prepared to move out. However, this is not always possible. The most important thing to remember is that children should not be told until both spouses agree that the time is right and both are emotionally ready to deal with the children’s reaction.
Once the time is right, remember to let children know that they are not the cause of the divorce. It is best to give an outside reason for the divorce that does not involve the children, but also a reason that does not cast a negative light on either parent. Put aside any internal feelings regarding the divorce and stress the fact that no one in the family is to blame.
A support system is especially important during this time. When breaking the news to children, it is best to have a trusted friend or relative available for children with whom to talk. Some children may require counseling to deal with their emotions. Also, it may be helpful to inform the children’s teachers or guidance counselors about the situation, as they can be valuable resources for the children and the parents.
It is also crucial to watch for any changes in children’s behavior. Children may attempt to behave perfectly, hoping that their parents will get back together. They may also begin acting out or behaving poorly, hoping that this will force their parents to talk to each other. It is important to inform children that since they did not cause the divorce, they also cannot make their parents reconcile.
Finally, keep emotions under control throughout the entire process and appear calm. Children may mimic adults’ behavior, and if an adult appears distressed or anxious, children may feel this way as well. Children should not be involved in any conversations related to the divorce proceedings, unless you are advised by your attorney to engage in conversation with the children.
Most families will be able to resolve disputes is through the mediation process. Mediation offers an option that is private and is one way to keep the issue off of the public record. The use of mediation to get a third party’s perspective may go a long way in preserving relationships, often to the benefit of the children. Children should not participate in the mediation process unless requested by the neutral, third-party mediator. It’s important to note that in some cases mediation will be required by the court. Though effective, mediation does not always meet the needs of a parent and, in those cases, litigation may be the next step.
An individual going through a divorce could benefit by speaking with an experienced family law attorney. A qualified attorney can be a valuable advisor during this difficult time and help families work through challenges involving children and other conflicts.
Child custody and child support laws in each state are nuanced and unique, but generally speaking, the child support and child custody laws of every state share certain things in common. Among these commonalities is the goal of protecting children caught in the middle of a divorce and a custody battle. The laws dealing with child custody and child support in each state, including Tennessee, are designed to operate in the child’s best interests.
Considerations in determining child custody
A court will consider a number of factors when making determinations about child custody. It is important to know that there are two types of child custody: physical custody and legal custody.
Legal custody pertains to a parent’s legal authority to make decisions for his or her child, including decisions relating to education, health care and religion. Legal custody is awarded to a parent who is deemed by a court to be deserving of a legal right to consult with the other parent as to the needs and interests of the child. There is a general trend towards awarding joint legal custody to both parents, so that each parent will be able to play an active role in the child’s upbringing.
Physical custody on the other hand concerns how much time a child will spend with each parent. In some cases, joint physical custody can be granted to both parents, such that the child will spend equal time with either parent. Often times, however, one parent is awarded sole or primary physical custody, while the other parent is granted liberal visitation rights.
When making child custody determinations, family court judges typically consider a number of factors. The factors include the overall relationship between the child and each parent, the mental and physical health of each parent, the child’s preference if old enough to be reasonable, each parent’s ability to provide for the child, the child’s track record, whether a history of abuse exists and the cooperativeness of either parent.
Child support determinations
Tennessee law provides that child support will be granted to a parent with physical custody of a child based on the “Income Shares” Model. Under this model, a child is entitled to the same proportion of parental income that he or she would have received had the parents decided to remain married.
In addition to child support, a court may require one or both parents to pay some or all of the health insurance costs associated with the child, as well as require that the parents pay their pro rata share of any medical expenses not covered by insurance.
Contact an experienced family law attorney
Trying to understand how a family court judge will determine child custody and child support can be overwhelming. A family law attorney understands the factors judges consider and know how to present evidence persuasively. If you have questions about child custody or child support, contact a family law attorney in your area.
All of these struggles can take a toll on military marriages. According to the Centers for Disease Control and Prevention, the rate of divorce for civilians was 3.4 percent in 2010. The Department of Defense reports that from 2001 to 2010, the divorce rate for active military members rose from 2.6 percent to 3.6 percent, above the national average. The rise in military divorce coincides with the beginning of Operation Enduring Freedom.
While the military does have programs to help enlisted men and women in marriage, and the divorce rate has leveled off in recent years, military divorce is still a common occurrence. While military divorce isn’t necessarily more complicated than a civilian divorce, it does have its own unique aspects and should be handled by an attorney experienced in the nuances of military divorce.
Issues like eligibility for military retirement pay and health care benefits are common questions for enlisted men and women and their spouses who are divorcing. The Uniformed Services Former Spouse Protection Act allows a state to treat military retirement pay as marital property. This means that retirement pay can be divided in a way a court deems is equitable.
Another issue involving military divorce is that it may begin while the servicemember is overseas. While this can create worry on the part of the servicemember that he or she will not be able to protect his or her rights in court, the Servicemembers Civil Relief Act can protect soldiers and sailors from civil obligation, which includes divorce proceedings and paternity suits. The SCRA also may protect a servicemember from outstanding credit card debt, pending trials and lease terminations.
Other family law matters also affect servicemen and women. Adoption, post-divorce relocation and domestic violence all affect military families. If you are an active duty or retired member of the armed services, contact an experienced family law attorney who can discuss your case.
“Fly America Act – Title 49 U.S.C. §40118 – generally requires that federal agencies ensure that government-financed air transportation is provided by a U.S. air carrier if such a carrier is available” See, B-258059, 1994 U.S. Comp. Gen. LEXIS 913, citing, Letter to Mr. James T. Lloyd, Dec. 6, 1994. To participate in a federally sponsored bidding process soliciting for air transportation services for United States Federal Government employees such as The City Pair Program (hereinafter “CPP”), an air carrier must satisfy the conditions stated in Fly America Act among other prerequisites outlined in a Request for Proposal (hereinafter “RFP”). For foreign air carriers, Fly America Act often appears as the most daunting and complicated part of the eligibility analysis, and pursuant to Title 49 U.S.C. §40118, a federal air transportation procurement cannot be obtained without complying with its terms. Therefore, any foreign air carrier looking to become a participant in these federal bidding procedures must learn, understand, and comply with the act.
As briefly discussed below, a review of the relevant law reveals three (3) realistic and practical ways of overcoming the restrictions incorporated in §40118.
One of the three options is to partner up with a U.S. air carrier in a code-share arrangement that meets the statutory and practical requirements either stated or implied in §40118 and in other relevant law. One of, if not the most important condition such arrangements need to satisfy is Title 49 U.S.C. §41102(a)’s restriction of participation in the federal bids to U.S. citizens. However, fortunately for foreign air carrier, relevant interpretation of the term “U.S. Citizen” under the Fly America Act is much broader, encompassing code-share arrangements between U.S. and foreign air carriers. See, Fly America Act – Code Sharing Transportation by U.S. Carrier, B-240956, 1991 U.S. Comp. Gen LEXIS 1113 (Sept. 25, 1991).
As a result, a correctly engineered code-share structure can make a foreign air carrier an eligible participant in a federally sponsored bidding process so long as its proposal is submitted by and along with its U.S. partner. In light of a recent decision issued the General Services Administrator (“GSA”) following a dispute between United Airlines and JetBlue/Emirates, a code-share arrangement only needs to satisfy one condition to qualify under the act: “The U.S. carrier should receive a substantial portion of the revenue.” See, In the Matter of: United Airlines, Inc., 2015 U.S. Comp. Gen. LEXIS 389; 2015 Comp. Gen Proc. Dec. P376, 14-15. However, despite its simple appearance and wording, tailoring the arrangement to meet all of these criteria remains to be a complex endeavor that must be undertaken by advice from competent legal counsel.
The second option is to form a joint venture structure with a U.S. based regional air carrier. Forming a joint venture with a U.S. based airline will serve two very important goals: (1) In the short run, a foreign air carrier can financially benefit from receiving federal awards, and (2) it can also establish a foothold in the U.S. air transportation market that can yield further, stronger, and much more clandestine extension into the US market.
Because of the strict restrictions imposed by the Civil Aeronautics Act of 1938 (“C.A.A.”) over foreign ownership of U.S. airlines, such structures must be designed accordingly. Amongst these restrictions, relevant regulations require that U.S. nationals control seventy-five percent (75%) of the voting interests, the president is a U.S. citizen, and the majority of the board consists of U.S. citizens. Indeed, the correct interpretation of “U.S. citizen” is a complex analysis that needs to be conducted with extreme care and diligence.
Despite such restrictions, there are various ways to engineer a joint venture structure to comply with the act. These avenues should be further studied and investigated considering all case-specific facts and circumstances.
The lesser of the three options is entering into a code-share arrangement with an air carrier from a treaty county, or, in the alternative, making strides towards either joining or negotiating an air transportation treaty with the United States Government. Despite having over ninety (90) Open Sky Agreements with various countries in the world, only the following four (4) agreements have been deemed qualified by the United States under this exception. These are agreements between the United States and the European Union, the United States and Switzerland, the United States and Japan, and the United States and Australia.
As such, pursuing this option appears to be the weaker of the three avenues discussed in this document.
Therefore, a foreign air carrier wishing to become a competitor in federally sponsored bids should engage an eligible U.S. air carrier (preferably a regional air carrier) for entering into a joint venture or a code-share arrangement. And in doing so, such air carrier must have competent counsel not only to scrutinize the details of this relationship for Fly America Act purposes.
Fifth, following formation, newly established companies should turn their attention to acquiring an employment identification number (“EIN”) from the Internal Revenue Service (“IRS”). Without it, companies cannot open U.S. bank accounts. Executives of these companies should remember that the acquisition of an EIN number through a non-U.S. person may take up to 15 days, and should plan ahead. If, however, these entities can name U.S. persons as responsible party under applicable law, obtaining an EIN can be accomplished within minutes. As such, it is instrumental for foreign companies to take this into account when deciding on staffing.
Finally, when an EIN has been obtained, foreign companies can start conducting business through their U.S. entities. At this point, the execution of the relevant corporate agreements should have been fully completed and recorded.
Now that the company is formed, has controlling agreements, and is able to send a receive money through a bank account, there may be need for other professional services. These may include assistance with immigration, corporate, and intellectual property matters. Since some of these areas require specific knowledge, it is advisable that foreign companies work with attorneys who have subject matter expertise. At Breeding Carter, we assist foreign companies with a wide variety of matters. We also maintain a wide network of well-respected and experienced professionals who can assist us with any issue a company may face. This unique feature allows us to continue to act as your counsel in charge of all pending matters, while relieving you or your executives of the stressful task of working with and managing multiple attorneys all at once.
If you are a foreign individual thinking about doing business in the United States, please contact us to discuss your options. Breeding Carter represents companies of all sizes from around the world. We are here to assist you.
A company with complex corporate structure that is designed to manage and receive U.S. and/or foreign derived income should give incorporating its’ U.S. entity in Delaware serious consideration. Similarly, a new technology startup hoping to raise funds from institutional or private investors may have no choice but to form its company in Delaware. Or, a company established solely to collect passive income from “… investments in stocks, bonds, notes, and other debt obligations (including debt obligations of affiliated corporations), patents, patent applications, trademarks, trade names, and similar types of intangible assets” may want to include Delaware on its short-list.
One of the most expressed reasons for forming an entity in Delaware is its well drafted corporate statutes, and Delaware’s well-respected Court of Chancery; specifically designed to preside over corporate disputes. Delaware’s corporate laws afford significant flexibility and autonomy in devising the rules by which entities are expected to abide. If a dispute arises either amongst the interest holders or between parties to a transaction, Delaware courts are well equipped and well versed in resolving such issue. There are also the tax advantages from which large corporations may benefit.
However, those who do not live or conduct business in the State of Delaware and only wish to incorporate an entity as a shelter against personal liability should be weary of this option. In those circumstances, incorporating in the state where they either reside or expect to conduct most of their business transactions may be the best option. Here is why:
Every State in the U.S. is an individual jurisdictions, all having their own rules about to how to conduct, regulate, and maintain business within their respective territories. This essentially means that an entity incorporated in one state will need to obtain a business license to conduct business in any of the other 49 jurisdictions. For example, a company formed in Delaware will need to “file a certificate of registration within 10 days after it starts to transact business in the Commonwealth of Massachusetts.” This requires paying filing fees and other annual fees in the state where the company transacts business, in addition to, fees necessary to incorporate and to maintain an entity in the home state. In other words, the business owner will not only have to concern themselves with the fees and the regulations of their home state but also those of the state where they transact business. So, when contemplating forming an entity, smaller businesses with less complex business structures should focus their attention on the source and location of their main stream of revenue when considering their state of incorporation.
Although there are ways to limit and reduce a company’s legal exposure in jurisdictions where they conduct business, they require advance and well-tailored planning that can often be overlooked. At Breeding Carter we represent local and foreign companies in all phases of corporate formation and governance. Contact us to discuss legal solutions that suit your personal and business goals.