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Protection Order vs. Restraining Order: What is the Difference and Do I Need One?

 

There are two types of Orders that can be issued by a Court that contain provisions to protect you and/or your dependents in a time of abuse or stalking that makes you fear for your safety.  Chances are, you’ve heard of a restraining order in which a Court can issue as part of a pending case to order a person to restrain from doing some action.  While a restraining order can be used domestically to order a person to stay away from a particular place or from you, it can also be used to prevent someone from selling property, or engaging in some other activity that is contrary to the interests of one or more of the parties in the case in which it is ordered.  For instance, a judge may issue a restraining order in a divorce to keep the parties from selling assets or hiding money.  While violating a restraining order does have a consequence, it is usually not enforceable by law enforcement.  It requires that parties appear before a judge who will make a determination of contempt of court.  That judge then will decide the penalty, if any, for the violation or prescribe a method by which a party can “cure” or make right the violation or both.

If you are in a domestic relationship, meaning parents or parent to be, spouse or former spouse, siblings or significant other and you fear for your immediate safety, what you are probably looking for is a protection order.  A protection order is a petition made to the Circuit Court by the person seeking protection, or by a parent or guardian of a minor child.  The form is printable at http://ujs.sd.gov/uploads/forms/protection/UJS-091A-Domestic%20Petition.pdf.  After submitting the form detailing your experiences and concerns, a duty judge will make a determination regarding your statements.  At that time, he will either grant a Temporary Protection Order, or TPO, against the Defendant and set a hearing for within 30 days or just set a hearing without granting the TPO.  Either way, the Defendant will have the opportunity to come to Court after being served the Order, by the sheriff, to tell his or her side of the story.  At that hearing, the judge will either make permanent the Protection Order for up to five years, or dismiss it if you have not made your case.  Both a Temporary and Permanent Protection Order, once served, give you immediate protection.  You may notify law enforcement who have the power to enforce the specifics of your order, which may include barring the Defendant from a shared residence, temporary custody of minor children, no contact in any form with you, prohibiting the Defendant from a particular place, such as a work place or any other place you frequently inhabit.

If you are in need of a Protection Order, an attorney can advise you on how to properly fill out the form and of the information that will lead to the best result until a hearing can be had.  An attorney can also represent you at the hearing and provide the knowledge and support when you must face the Defendant.  If you have minor children that are affected by the order, whether as a result of a visitation or support order, an attorney can assist with those matters as well

If you have been served with a Protection Order, an attorney can represent you in court to protect your rights, especially if you have been falsely accused.  If an order is entered, it is a restriction on your rights to contact or be in certain places that the accuser has listed.  You may not be able to keep firearms as a result of an order against you.  Any violation of the order is a criminal charge and could be punishable by a year in jail or $1000.00 fine or both.

If you are in need of representation because you need or have been served with a Protection Order, the attorneys at Wilka and Welter are experienced and able to assist you.

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Marsy’s Law: What does it mean to me?

In 2016, South Dakota voted in Constitutional Amendment S, dubbed Marsy’s Law.  It is currently found in Article IV, Section 29 of the South Dakota Constitution Bill of Rights.  The law was named after Marsy Nicholas who was the sister of Henry Nicholas, founder of the wireless corporation Broadcom.  In 1983, Marsy was a senior at UC Santa Barbara, and was murdered by her boyfriend at the time, Kerry Conley.  Conley was sentenced to life in prison with the possibility of parole.  Conley died in prison, but the Nicholas family attended numerous parole hearings prior to his death.  Nicholas then organized a campaign of legal advisors to draft a comprehensive bill of rights for victims.  The main goal of Marsy’s Law was to provide Constitutionally protected rights to victims of crimes similar to those of the rights of criminals accused of crime.  Several other states including Illinois, North Dakota and Montana have also adopted some form of Marsy’s Law into their constitutions.

Previously, in South Dakota, victim’s rights were only found in the codified statutes under the South Dakota Victims Rights Act.  Those in favor of the passage of Marsy’s Law contended that the rights, as stated in the codified law, were not enforceable and were not as comprehensive in the type of crimes that afforded victims special rights.  As a Constitutional Amendment, Marsy’s Law became the supreme law of the State of South Dakota and all other contradictory state laws became invalid or unconstitutional.

If you are a direct victim of crime, a person who suffers direct physical, mental, or financial harm of a crime or a spouse, lawful representative or immediate family of a victim, Marsy’s Law affords you inalienable rights during and after a criminal proceeding.  Article IV, Section 29 of the South Dakota Constitution enumerates nineteen separate provisions and qualifications for the application of those rights.  As a victim of crime in South Dakota you now must be given a card, called Marsy’s Card, that states your rights.  You have the right to privacy, meaning the right to prevent disclosure of of information that could be used to locate or harass you or your family.  You may also obtain a protection order against harassment by the offender. You have the right to refuse to answer any questions formally or otherwise, or other legal discovery request (limited only by the 8th Amendment to the US Constitution, whereby an offender has the right to confront their accuser in Court).  You have the right to participate in legal proceedings, to receive legal paperwork and to confer with the prosecutor.  You have the right to the return of property used as evidence after trial.  You have the right to be informed of every decision and action taken by the Courts against the offender.  You have the right to be notified of and to attend sentencing and parole hearings of the offender.  You have the right to be notified of and to have your safety concerns addressed upon the release of an offender.  All of these rights are enforceable by you, your attorney or via the prosecutor at any point.  The Court must act promptly to enforce your rights, in a manner no less vigorous than would be afforded the criminal offender.

If you have been charged with a crime, Marsy’s Law affects you as well.  More than ever before any person, family, or legal representative affected by your crime will have the right to participate themselves, via an attorney or the prosecutor in your case, from the initial plea or indictment through sentencing and even incarceration and after.  The effects of the participation of the victim can influence a prosecutor or judge during any point of your legal proceedings.  In fact they may affect the proceedings themselves, if a victim feels that their rights were not protected in a way no less vigorously than your rights as the accused.  It may be more difficult to obtain information regarding the victim in the discovery portion of your representation.  You may be ordered to pay restitution to the victim(s), and money will be first applied to the restitution before any fines or costs are paid to the State.  Regardless of Marsy’s Law, you are still entitled to and afforded every right given by the United State’s Constitution, because Marsy’s Law is South Dakota law and the US Constitution trumps that of any state.

If you are the victim of a crime, or certainly if you have been accused of a crime, you may need legal representation to protect your rights.  Call the office of Wilka and Welter to discuss how we can help you.

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Understanding the Law: Divorce in South Dakota Part One: No Fault vs. Fault

Should you find yourself in a marriage that is unlivable and you need to divorce, there are several factors that you should consider prior to filing.  Divorce law is different in each state.  In South Dakota, there exist specific statutes or laws that govern how divorce is handled.  This blog series is a list of all of the factors that one must consider.  The first is:

 

There must be a reason for the divorce.

 

South Dakota recognizes both “fault” and “no fault” divorces.  A “no fault” divorce does not place the blame on either party and cites irreconcilable differences as the reason for the divorce.  Irreconcilable differences are defined as those determined by the court to be substantial enough reasons for not continuing the marriage and make it appear as though the marriage should be dissolved.  In order to file for a divorce citing irreconcilable differences, both parties must agree to the divorce.  If there is no agreement you must file for a “fault” divorce.

In South Dakota, you may file a “fault” divorce on the basis of adultery, extreme cruelty, willful desertion, willful neglect, habitual intemperance and conviction of a felony.

The reasons for “fault” are listed and defined below:

 

  • Adultery is defined as the voluntary sexual act by a married person with one of the opposite sex to whom he or she is not married.

 

  • Extreme cruelty is defined as infliction of grievous bodily injury or grievous mental suffering upon the other, by one party to the marriage.

 

  • Willful desertion* is defined as the voluntary separation of one of the married parties from the other with intent to desert. Refusal to have intercourse absent a reasonable physical condition preventing a person for doing so and/or a refusal to dwell in the same residence is considered desertion.  If a person threatens another with bodily harm or danger and that person leaves, it is the person who threatens who is at fault for desertion.  Separation by consent of both parties is not considered desertion by either party unless either party decides to desert during the separation.

 

  • Willful neglect* is defined as the neglect of a person to provide the common necessities of life for their spouse, when having the ability to do so, or the failure to do so due to idleness (laziness), profligacy (excessive extravagance, or spending), or dissipation (wasting).

 

  • Habitual intemperance* is defined basically as overuse of intoxicating drinks that makes attending to business impossible for the majority of the time, which causes great mental anguish on the other party.

 

*(Desertion, neglect, or intemperance must occur for a period of one year before either is considered as a grounds for divorce).

 

  • Conviction of a Felony is self explanatory; however, fault based on the conviction of a felony is at the discretion of the judge based on the type and nature of the felony.

 

  • Chronic mental illness as incurable chronic mania or dementia, is also grounds for a divorce, if that illness has been diagnosed and the party has been under confinement by order of the court or the Board of Mental Illness.

 

Most of the laws pertaining to “fault” in a divorce were first written in 1939 and seem quite outdated today.  In fact, South Dakota is one of only two states without some form of unilateral no fault divorce law, meaning that one party may file and obtain a divorce without citing some form of “fault” as a reason for the divorce.  Efforts are underway to change the law to allow for unilateral “no fault” divorce filings.  These efforts are primarily due to domestic violence situations whereby the abused party must prove “fault” in order to obtain a divorce and may be subject to various affirmative defenses on the part of the abuser who can “block” the divorce.  A USD law school professor, Roger Barron, has spearheaded such an effort entitled “Tania’s Law,” named for the victim of an abusive relationship, which led to her murder when her husband would not agree to a divorce citing irreconcilable differences.  Opposition to these efforts claim that divorce should not be so easily obtained, and that state law already protects abuse victims.

If you or someone you know is considering a divorce, please contact the lawyers of Wilka & Welter for a confidential consultation regarding your individual needs.

Check back next month for Part Two of Understanding the Law:  Divorce in South Dakota.

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Should I Get a Prenuptial Agreement?

What Prenups Can and Cannot Do for You
Prenuptial agreements are touchy subjects. Oftentimes, one spouse is in favor of using one while the other feels put out by the mere mention of it. However, as marriage is a legally binding institution, it is wise to protect yourself before entering into it. A prenuptial agreement can facilitate that. However, in South Dakota, there are limitations on what prenups can and cannot do. By understanding the basics of prenuptial agreements and the way that the law views them in South Dakota, you can make a more informed decision before tying the knot.

What is a Prenuptial Agreement?

Put simply, a prenuptial agreement is a contract that is signed by two people who intend to be married imminently. It outlines a legally enforceable plan for how a couple’s assets will be divided in the event of divorce. Naturally, people don’t marry with the expectation that they will divorce one day. The reality is, however, that a significant percentage of marriages end in divorce. Should that happen to you, a prenuptial agreement can minimize the resulting fallout.

How Can a Prenup Be Used in South Dakota?

People often assume that they can outline precisely how they want everything to unfold following a divorce by including it in a prenup. That’s not quite how it works. In South Dakota, prenuptial agreements concern the division of property from a marriage, including bank accounts, land, automobiles and buildings. This document may not be used to place limits on the amount of child support that one spouse may pay, for instance. This is the province of family courts, which base their decision on the best interests of the child at the time of the divorce. Similarly, child support and alimony may not be enforced by prenups. Such orders can be modified as circumstances change, so anything laid out in a prenuptial agreement is not legally enforceable.

Is a Prenuptial Agreement Right for You?

Anyone can use a prenuptial agreement. Since it tends to be divisive, however, it only makes sense to do so under certain circumstances. If one spouse is much wealthier or poorer than the other, for instance, a prenup could be used to protect the wealthier one’s assets. They are also commonly used when one or both spouses are bringing significant amounts of debt into the marriage or when one or both are bringing property into the marriage. When one or both spouses are remarrying, prenups sometimes make sense as well.

If you’re getting married soon and are considering a prenuptial agreement, you can learn more by contacting Wilka & Welter, LLP today.

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What You Need to Know About South Dakota Child Custody Law

Learn The Facts Before You Head To The Courtroom
Child custody laws in South Dakota support the best interests of the child. Before filing for custody, parents are encouraged to review the South Dakota child custody laws. These laws are largely consistent from one state to another. However, under the Uniform Child Custody Jurisdiction And Enforcement Act, South Dakota is required to consider custody decisions made in other states.

While divorce proceedings are in effect, the court will oversee the care of the child. After the divorce is finalized, the court will finalize its decisions about the child’s care, education and custody. Courts reserve the right to change, modify or vacate previous custody decisions to allow for ongoing supervision of the child and the parents. Grandparents are allowed visit grandchildren as long as the visits are in the child’s best interests and do not interfere with parent-child relationships.

How Is Child Custody Determined?

You may be awarded sole custody or joint custody of your child, and the court will set forth a plan for spousal and child support. The court will also establish a plan for joint property distribution that will provide for the needs of the child.

Child custody laws no longer favor one parent over another. Most custody decisions are based on the preferences of the child, as long as that child is at least 12 years old. As of July 1, 2014, South Dakota’s Shared Parenting Law encourages joint custody whenever possible.

The court will consider joint custody if it is in the best interests of the child and consistent with the wishes of the parents. If shared custody is considered, the court can order the parents to come to an agreement about where the child will live, the child’s health care and the child’s education.

Parental Fitness

A parent may be determined unfit to have custody if that parent has been convicted of domestic violence, assault or child abuse. The court will also consider whether a spouse has an arrest record and whether protective orders against a spouse have been issued.

Child Custody and Relocation

If the custody order has no specific relocation provision, the parent with custody must notify the noncustodial parent by certified mail about the relocation at least 45 days before the relocation takes place.

The relocation notice must state the reason for relocation, and it must explain why the relocation is in the child’s best interests. It must include the address of the new residence, and the parent who is not relocating must be given a proposed plan for visitation after the relocation takes place.

Notice is not required if the relocation is within the child’s present school district or will bring the child closer to the noncustodial parent. If there is an order of protection against the noncustodial parent, or if that parent has been found guilty of assault, domestic violence or child abuse over the last year, no relocation notice is required.

To learn more about child custody laws in Sioux Falls, SD, visit the family law firm of Wilka & Welter, LLP, or contact us directly.

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How to Get Compensation for Personal Injury

Don’t Suffer in Silence; Take Advantage of Your Right to Justice

If you’ve experienced an accident or injury due to someone else’s negligence, you have some time-sensitive decisions to make. In South Dakota, victims have up to three years after the date of an incident to file a lawsuit against an individual or business. Personal injury claims against a government employee or agency in South Dakota must be filed within one year of the event. You can view the statute of limitations for personal injury in South Dakota on the state legislature’s website.

Comparative Fault Laws in S.D.

Like many states, South Dakota has specific laws to determine compensation for personal injuries when the victim shares some responsibility for the incident. If a judge finds you to be partially at fault for your injury, the maximum amount you can collect from the plaintiff will be limited by the percentage of the blame you share. If your insurance company gets involved, they may use the same comparative fault formula to adjust your payout.

Personal Injury Damage Caps in S.D.

South Dakota also has laws limiting the amount in damages that victims may receive in personal injury cases. For example, awards in medical malpractice cases and product liability cases are capped at a total of $1,000,000, which includes compensation for medical bills, lost wages and non-economic pain and suffering damages. Punitive charges, which are awarded specifically to penalize the perpetrator for breaking the law, have no such cap in South Dakota.

Wilka & Welter Wins Personal Injury Cases in Sioux Falls, South Dakota

With a combined 40 years of litigation experience, the lawyers at Wilka & Welter, LLP have an impressive track record for helping personal injury victims seek justice. In addition to representing victims in civil cases regarding worker’s compensation and family law, we also defend clients facing criminal charges such as DUI and DWI cases. If you’ve suffered economic or non-economic damages due to an accident or injury in Sioux Falls, S.D., do not wait until your time to file a claim expires. Contact our office to set up a consultation for legal representation, and we will work together to make sure you are justly compensated.

What Happens if I Get Injured on the Job?

Know Your Options If You’ve Been Injured on the Job in South Dakota

Being seriously injured while at your job can be devastating. You’re likely dealing with the pain and suffering associated with your injury, and you may be worried about finances too. Thankfully, there are options for employees in South Dakota who’ve been hurt while working. State workers’ compensation laws are in place to protect you.

South Dakota Law and Injured Workers

In South Dakota, workers’ compensation law governs compensation for employees after they’ve been injured on the job. Almost all employees are covered by this law, although there are some exception for independent contractors, farm and agricultural laborers, and domestic laborers. These laws are designed to protect both employees who are injured on the job or who develop an illness that is caused by the type of work they perform.

While you can receive benefits for most injuries or illnesses caused by your job, there are some situations when your workers’ compensation claim may be denied. You may be denied compensation if

  • your injury was the result of willful misconduct on your part,
  • you were intoxicated or using illegal drugs at the time of the accident,
  • you failed to use safety equipment that your employer provided or
  • you lied about your injury when applying for benefits.

How to Claim the Benefits You Are Owed

If you are hurt while working or have an illness that’s related to your job, it’s essential that you communicate with doctors and your employer right away. If you’re injured on the job, let your supervisor know immediately. It’s a good idea to put everything you remember about the incident down in writing so that you can refer to it in the future. It’s also essential that you seek medical care as soon as possible. If you wait for too long after an injury to go to a doctor, your employer or its insurance company may be able to argue that your injury wasn’t serious or didn’t happen on the job.

Once you’ve reported an injury to your supervisor, your company or its insurance agent has seven days to make a report to the South Dakota Division of Labor and Management. The employer or insurance company is responsible for ensuring that all associated medical bills are paid and may be liable to compensate you as well. Depending on the severity of your injury, you may receive

  • temporary partial disability,
  • permanent partial disability,
  • permanent total disability or
  • job retraining.

Spouses, children, parents and grandparents of individuals who are killed while on the job may also receive compensation following the loss of their loved one.

Most employers play fair when it comes to on-the-job injuries, but there are times when employees have to work with private attorneys to get benefits. Do you need help getting the workers’ compensation benefits you deserve? Contact Wilka & Welter today. Our compassionate, knowledgeable attorneys will hear your story and explain your options.

What Happens if You Don’t Pay Child Support?

A Wide Range of Penalties You Can Avoid

There are myriad reasons someone may feel compelled to skip child support payments. A person might feel resentful at a former spouse, want custody of the child or simply have difficulty affording the payments. Either way, you could face serious consequences if you fail to pay the bill.

How the System Works

The state government expects both parents to contribute equal portions of their income to a child’s upbringing. In family law proceedings, judges may order citizens to pay child support as part of a divorce or child custody case. To avoid penalties, you should pay in full and on time every month.

Financial Consequences

The justice system and Department of Social Services can punish delinquent parents in several ways. These penalties increase when one owes relatively large sums. The state may confiscate various assets, such as investments and cash. It could place a lien on your house that forces you to pay child support if you sell the property.

The authorities often report missed payments to credit reporting agencies. This would affect your credit rating and have a variety of harmful effects. People with low scores pay higher insurance premiums and interest rates. Negative information could also make it harder to rent a house or apartment.

If you fail to make multiple payments, the state of South Dakota might prevent you from traveling abroad, running a business or driving a car. It may cancel your passport when you owe $2,500 or more. Several types of state-issued licenses could be revoked if the unpaid amount reaches $1,000.

Officials have the power to intercept funds from numerous income sources. They can garnish wages and most government benefits. The state could force you to pay child support if you receive Social Security, unemployment, workers’ compensation or disabled veterans benefits. It may also confiscate money from a personal injury lawsuit.

The government frequently diverts state and federal tax refunds to child support. It can do the same with any check that the Internal Revenue Service sends to a taxpayer. South Dakota seized almost 4,900 federal stimulus payments in 2008, according to the Aberdeen News.

South Dakota is one of more than 30 states that allow courts to add interest to child support debts. This increases the amount of money that officials can seize or intercept if they target your assets, earnings or benefits.

Criminal Consequences

Courts treat intentional nonpayment as a criminal offense. The penalties become especially harsh if you move to another state. A judge could order you to spend as many as 180 days in prison, and you might need to pay fines as well. South Dakota courts normally reserve these punishments for parents who make no attempt to fulfill their obligations.

If you need legal help, a family law attorney can assist you. The experienced professionals at Wilka & Welter, LLP handle a wide range of child support and custody cases. Please contact us via email or phone to discuss your situation.

Minimizing the Impacts of a DUI/DWI Offense

Facing a driving under the influence (DUI) or driving while intoxicated (DWI) charge can be an upsetting, emotionally draining experience. No matter how stressful the experience is, though, it’s essential to face it head-on and to work proactively to minimize the impacts of a DUI offense. With planning, professional help and a positive attitude, you can overcome the challenge and help protect yourself in the future too.

Essential Steps After Being Charged with a DUI or DWI

Panic is one of the first emotions that drivers who have been pulled over for a DUI or DWI experience. Panic is normal, but it’s important to stay as calm as you can in the hours and days following the incident. As soon as you can, write down the details of your DUI or DWI arrest. If there were any witnesses to your arrest, ask them to jot down anything they remember as well. Be sure that you’ve recorded every aspect of your arrest that you can remember.

Recording the details of your arrest will help you better answer questions in court and feel more at ease talking to a judge or prosecutor. In addition to communicating clearly with the court, it’s also important that you show that you’re taking steps to avoid making a similar mistake in the future. That could include enrolling in an alcohol education program, attending Alcoholics Anonymous (AA) meetings or working with a licensed counselor.

Getting support from your family and friends in the wake of a DUI or DWI charge is also important. You’ll have people who can help you stay on a healthy path, and you’ll also be able to prove to the court that you have a support system in place. Confide in friends and family members who will listen without judging you. Talk to them about the fear and stress that you’re facing. Doing so will prevent you from becoming isolated and can offset the depression that sometimes comes with serious legal problems.  

Moving Forward and Minimizing the Impact of a DUI

Fear and shame are normal reactions after being pulled over for a DUI. While you’ll have to deal with these feelings in the days to come, it’s essential to stay positive and focus on rebuilding your life. It’s also important that you educate yourself on South Dakota DUI laws and your options. An attorney can help you understand the charges that you face and any legal consequences.

Do you need help dealing with a DUI or DWI charge in Sioux Falls or the surrounding areas? The compassionate, experienced attorneys at Wilka & Welter are here to help. Contact us today to talk about your situation.

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Is Hiring a Personal Injury Attorney Worthwhile?

Every year people are involved in car accidents that cause personal injury to themselves or personal family. Many are unaware that they can receive compensation for accidents that are not their fault. A car accident attorney in Sioux Falls can provide valuable assistance in helping accident victims receive the compensation they need to pay for property damage, medical expenses and loss wages due to being unable to work during recovery. Here are some ways in which a personal injury attorney can contribute toward a favorable settlement in a car accident case.

Property Damage

In a serious accident, vehicle damage can be great. In some instances, cars may be declared total losses. People who rely on their vehicle for daily transportation will need to get it replaced right away. In accidents that are not their fault, a driver’s insurance company should cover the cost of repairs or loss. Sometimes, however, the insurer’s settlement is insufficient to cover all the damage that has been done. This leaves victims with no option but to pay out of pocket to complete repairs, even though the accident was not their fault.

A qualified attorney can help victims recover their losses. By filing a claim against the insurance company of the person who caused the accident, an attorney can help victims reach a favorable settlement to compensate for property damage done to the victim’s car.

Personal Injury

In the event of serious personal injuries, having an attorney will be an asset in getting compensation for medical bills and loss of wages that extend beyond the victim’s car insurance policy. An experienced attorney can help accelerate a victim’s claim against the perpetrator of the accident so he or she can get the medical services he or she needs. Accident victims should also get reimbursement of the funds they spend out of pocket to pay for medical costs.

An attorney can also help victims receive compensation for “general damages” a victim may suffer due to the accident. Sometimes a single injury can have repercussions that remain long after the injury is healed. Victims deserve to be compensated for pain, suffering and any other negative repercussions that result from an accident caused by someone else.

Working with a qualified car accident attorney will make a tremendous difference in reaching a favorable settlement for a vehicle accident claim and getting the compensation victims seek for car accidents that are not their fault.