VW’s “Defeat Device” Software Might Technically Be Legal

FILES - A Volkswagen employee picks up aIn Europe, that is. Volkswagen is pursuing a ​pretty bold legal defense after admitting to using “defeat device” software that controls diesel emissions only when the car senses it’s being government tested. A top Volkswagen Europe official claims that the automaker’s cheating software might not be illegal under current EU pollution testing laws.

How could this be? It just so happens that Europe’s emissions testing regulations contain a mammoth loophole that could make VW’s scandal disappear entirely. Furthermore, European regulators have known about it for at least four years.

Volkswagen’s Paul Willis wrote that the automaker is still considering “whether the software in question officially constituted a defeat device.” While that may sound brazen, he’s actually not being too far-fetched.

Europe’s regulations specify that ​”the settings of the engine and of the vehicle’s controls shall be those prescribed by the manufacturer.”​ That broad definition could potentially allow the software that VW installed in its vehicles. 

Europe’s vehicle emissions laws are full of holes. The EU’s system allows carmakers to submit preproduction vehicles for testing, allowing for tweaks such has removing rear seats to reduce weight or sealing up gaps with tape.

While these tricky allowances might add up to small improvements in testing, allowing an automaker to specify the engine management software used during emissions testing opens up a whole new level of emissions trickery.Europe’s system also allows automakers to test in any of the 28 member states, with results being recognized across the EU.

​”What we have developed is a phony system of testing where the member states [of the European Union] are in competition with each other for who can make it the most easy for the car manufacturers to pass the test,” Gerben-Jan Gerbrandy, a Dutch member of the European Parliament, told NYT.

Lucia Caudet, a spokeswoman for the European Commission, told NYT in an email that the governing body has “no formal view” on whether the software in question counts as “a ‘defeat device’ in the EU legal sense or not.”

How a Trust Could Change Everything if You Get Divorced

The era of the financial trust has dawned, as more people learn about the value these financial tools provide. Trusts are formed every day for gifting and asset management, and especially when someone passes away, where the remainder of their assets are placed into a trust.

But for divorce? What’s the purpose of a trust when it comes to divorce proceedings? Turns out there’s a very significant role trusts can play when it comes to divorce, and the key words here are asset protection.

Assets Placed in a Trust

Everyone knows about the “Pre-Nups” they should draw up before getting married. The couple signs agreements stating each is not entitled to his or her spouse’s assets should they one day get divorced.

A trust can behave in a similar manner, if it’s established before marriage. Any assets placed in such a pre-marriage trust would not be considered property of that individual spouse any longer, but rather the property of the trust.

Therefore, if the couple eventually gets divorced, the spouse has no right to those assets. Likewise, if alimony disputes surface during divorce proceedings, assets placed in trust before marriage cannot be counted as “income”, thereby reducing the amount of alimony owed. Check your state’s laws, since they vary by state.

If someone is the beneficiary of a trust, that can be used against her (or him) when it comes to calculating how much alimony is owed her (or him). However, that’s not always the case, and courts have ruled that the beneficiary of a discretionary trust should get full alimony despite receiving benefits from a trust. That’s because a beneficiary may not have the power to “compel” payments from the trust, making it unreliable as income. In that case, she’s need the full, unabridged alimony in order to live comfortably.

This means forming a trust won’t mess up any later alimony payments you might be owed if you get divorced down the line.

Trusts Even Work for Businesses

If you own a small business, then placing it in a trust before you get married will make it separate property from your own, thereby making it irrelevant when it comes to divorce. The trust owns your business, not you.

Asset protection attorneys are clear on this: any future claims against anything placed into trust before marriage will be denied the future ex-spouse. There is no claim and this is even explicitly stated in the laws of some states.

Domestic asset protection is complex, and most people have no idea they can harness the power of a trust to protect their assets in case of divorce. A trust can be one of the industry’s most flexible planning tools. It’s not just for tax-efficient distribution of wealth!

The Domestic Asset Protection Trust (DAPT)

There’s even a name for the type of trust we’re talking about, and it’s the Domestic Asset Protection Trust. Typically used by wealthy individuals to shield their assets from creditors, it’s also used, of course, to protect assets in divorce. If you think this is for you, and better than a pre-nup, find out more from your family lawyer.

Filing for divorce – legal requirements

divorce requirements
photo credit: DonkeyHotey

Most jurisdictions state that a divorce (or “dissolution”) action must be filed and decided in court. The majority of states have a “no-fault” divorce policy. This means that the courts do not really care to investigate whether a spouse is wrong or guilty of marital misconduct.

However there are a couple of legal requirements that have to be met in order to file a divorce petition. These are:

  • Residency: The party that is filing the divorce papers must have resided in the state for a certain amount of time (at least 6 months prior to filing the petition, and at least 3 months in the county where the petition is filed)
  • Waiting Period: Before a divorce is marked as final and the parties can remarry, a period of time must pass. This waiting period can be anywhere from being immediate to taking as long as 12 months (average being 6 months) plus one day from the date that the action has been filed in court.
  • Legal Grounds: In most divorce cases, there are two legal grounds for getting a divorce: the first one is “irreconcilable differences” and the other one is “incurable insanity”. “Irreconcilable differences” simply means that the spouses have differences and difficulties which cannot be reconciled which have led to a serious breakdown in the relationship.
  • Jurisdictional Requirement: A divorce petition must be filed in the proper court. The correct court is the one which is located in the county where at least one of the spouses has resided for at least 3 months prior to filing for divorce.

We have previously covered the steps of the divorce process.

The 7 Steps of A Divorce

photo credit: banjo d
photo credit: banjo d

Today we are going to have an overview of the basic divorce process.

The steps taken in order to obtain a divorce will depend on the specific situation of the parties involved in the divorce. A divorce that is sought by parties that were married for a short time, had no children and few assets or debts will be less involving than a divorce where parties have been married for a number of years, have minor children or have many assets, properties or debt to divide. The divorce process is much simpler when both parties agree to have the divorce. If one party is taken by surprise when receiving the divorce papers, they might stall for time, doing whatever they can to prolong the process. Generally, the more the parties can agree on between themselves, the faster and smoother the divorce will be finalized. If the couple is constantly fighting for one thing or another and disagreements abound, the process will take longer.

Filing the petition

The first step in the process of obtaining a divorce is the filing of the petition. Even in cases where both parties agree to the divorce, one of them will have to file the divorce petition with the court. The grounds for divorce are spelled out in the petition. The grounds for divorce vary from state to state. All states allow for one kind or another of no-fault grounds such as “irreconcilable differences”, but only a few jurisdictions still consider fault grounds for divorce, such as abandonment, domestic violence or adultery.

Your attorney will help you with this information and tell you whether fault grounds are available in your state, and if so, whether it’s worth it to file divorce on these grounds.

Temporary orders

Temporary orders are used when one of the spouses depends on the other for financial support or if they will have custody of the children, child support. In order to obtain custody and support, that spouse will have to ask the court for temporary orders. A stay at home mom for example, will require financial support from her husband to be able to pay current household bills. She may also be looking for a temporary order for custody and temporary child support order for the kids. Temporary orders are granted rather quick – within a couple of days and will last until a full court hearing. If the spouse that is seeking the temporary order also the one who is filing the petition, it reasons that they will have to file them at the same time. If this did not happen they should file their temporary order request as soon as possible.

Service of process

Another document that must be provided by the party that is filing the divorce petition is proof of service of process. This paper confirms that a copy of the divorce petition was given to the other involved party. If the parties have mutually agreed on proceeding with the divorce, it is best for the one who has filed the petition to also arrange for the service of process to the other party’s lawyer. This is considered a dignified service of process. An undignified service of process would occur when, for example, the process server visits the spouse at his or her place of employment to serve the divorce papers.


The spouse that receives the service of process will have to file a response to the divorce petition. If the divorce is sought on fault grounds and the responding party wants to dispute these claims, he or she will have to write this down in the response. The responding party usually has the option to dispute the facts that are alleged to be grounds for the separation or they may choose to assert a defense to the grounds. If the responding party does not agree to the property division, custody, support or other issue related to the divorce, they must address this in the response.


If the parties do not agree on the division of property, custody or support, the process of negotiation begins. Settlement conferences may be scheduled by the court in order to move the parties toward a resolution of their differences. If there is disagreement on child custody and visitation, the court may order mediation, evaluation of parents and children with the help of a social worker or other court employee and that a guardian or lawyer be appointed to represent the children. Other differences that are negotiated are property division and alimony.


If there are issues that the parties could not agree on, they will be decided at the trial. Going to trial takes more time and money and has unpredictable results. Family law attorneys recommend avoiding going to trial if possible.

Order of Dissolution

The order of dissolution legally ends the marriage and states how the property and debts will be divided between the parties, along with custody, support, visitation and other issues. If the parties have negotiated and agreed on all issues without going to trial, they will draft the order and submit it to court. The judge will approve it if the order is compliant with all legal requirements and all parties have accepted it knowingly and willingly. Otherwise, the Order of Dissolution is issued at the end of the trial.

Are you planning to file or currently going through a divorce? Talk to a divorce attorney to find out what your options are. If you and your spouse would rather settle out of court, the whole process can be quickly and at an affordable price.

How Are Child Support Payments Determined?

photo credit: jen-the-librarian
photo credit: jen-the-librarian

The federal government has a number of guidelines when it comes to determining child support payments in order to ensure consistency and predictability in awarded child support payments. Each state has different guidelines.


All guidelines have income as the starting point for calculating child support payments. The income of both parents is taken into consideration. The percentage of each parent that constitutes the total income of the family is used to determine what each parent will have to pay for child support. Some states use gross income as the indicating factor, others – net income.


A parent who is already paying child support or alimony from a previous arrangement will usually be entitled to a deduction from their income. For the deduction to be valid, there are two requirements: the first one is that the support payments must be court-ordered (enforced by law, i.e. not voluntary) and the second one is that the parent actually makes the payments. A parent cannot make deductions from his or her income in order to support a subsequent spouse or child.

Childcare expenses

State laws also take into consideration the amount of money that is spent on childcare in order to keep a job or look for a job. Some states adjust the amount for childcare expenses to account for federal dependant care exemption on income taxes. Usually, states that provide this type of tax exemption will calculate and adjust the expense for this as well.

Healthcare expense

The child support order states clearly who will have to pay for the child’s health insurance. The basic child support order will also include the amount spent on health insurance and will be credited to the parent who has been ordered to pay. Many states also call for an extra amount that will be used to cover out of pocket, unforeseen expenses. Emergency health care expenses will also be accounted for.

Other expenses

Other expenses may be added to the basic child support order to accommodate for children who have special needs such as handicapped children or gifted children. Visitation expenses incurred by the parent or child are usually split between the parents according to their incomes. The parent without custody would receive credit for this expense which belongs to the the parent who has the custody.

Shared custody and visitation

When determining the amount of the child support award, state guidelines take into account the amount of time the children spend with each parent. Generally, the more time the children spend with the non-custodial parent, the more expenses he will incur. Shared custody and extended visitation-type situations will have a lesser amount of child support than in those where there is sole custody and less visitation.

There is a presumption that state guidelines provide the correct amount when it comes to legal cases where it is required to determine the amount of child support to be awarded. It’s possible, however, to obtain an amount that is bigger or smaller than the established guidelines. A judicial determination of extenuating factors that diverge from established guidelines will be required in order for this to happen.