Library | MyFamilyLaw.com http://myfamilylaw.com/library Information and Laws Related to Divorce, Custody, Prenuptial Agreements, and other Family Law Issues Sat, 13 Mar 2010 04:53:31 +0000 en hourly 1 Modifying a Custody Order http://myfamilylaw.com/library/children-parenting/modifying-a-custody-order/ http://myfamilylaw.com/library/children-parenting/modifying-a-custody-order/#comments Mon, 01 Mar 2010 05:13:17 +0000 K. McKinney http://myfamilylaw.com/library/?p=21368
  • Parental Alienation
  • How Can I Have My Child Support Order Modified?
  • Do I still have to pay child support while the kids are visiting me?
    • ]]>     After a divorce or paternity case has been resolved, the final judgment is generally non-modifiable. Two major exceptions exist to this general rule however. The family court retains jurisdiction to modify the child support order and the child custody order until the child reaches the age of majority or is otherwise emancipated. The court can modify these orders when it finds that a modificaparetion is in the child’s best interests.

    Jurisdiction

    For every determination of child custody (both for original orders and subsequent modifications), the court must find that it meets the jurisdictional requirements of the Federal Parental Kidnapping Prevention Act (FPKPA) and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Both of these federal statutes help determine the proper forum for custody disputes if there is more than one state with an interest in the litigation.

    Generally, the state that issued the initial custody order continues to have jurisdiction over that order for modification purposes. However, another state’s court might be allowed to modify the original order if neither the child nor a parent have a continued significant connection to the original state (i.e., they’ve moved away) or that state’s forum is more convenient that the original state’s forum for litigation.

    Grounds For Modification Of Child Custody Orders

    As noted above, the family court can modify an original custody and visitation order if it is in the best interests of the child. However, most state statutes require that the petitioning parent prove that a significant change of circumstances has occurred since the issuance of the original order such that the original order is no longer in the child’s best interests.

    This requirement acts as a gatekeeper, theoretically prohibiting parties and courts from multiple custody modifications in the face of possibly trivial issues and supporting custodial stability. The courts of appeals rule that any custody modification without a showing of significant change in circumstances would be an abuse of discretion.

    Commonly cited changes in circumstance include parent relocation, custodial interference or frustration, age of child, parent employment schedule change and, unfortunately, allegations of lack of fitness to appropriately parent. In the event that the moving parent alleges a threat to the child’s physical or emotional well-being, the court may appoint a guardian ad litem to investigate and represent the child in the proceedings.

    Once the moving parent proves a significant and continuing change in circumstances, the court must still decide what is in the best interest of the child. The court will consider what is best for the child’s health, safety and welfare with a preference for regular (and frequent) contact with both parents.

    Parental Relocation

    [main parental relocation article]

    If the non-custodial parent relocates to a distance which precludes the practical exercise of original parenting plan, he or she may ask the court to modify the parenting schedule to accomodate longer (though less frequent) visits. Mid-week overnights or even regular weekends may no longer be feasible if the non-custodial parent moves far enough away. The court may order increased spring or summer vacation time instead.

    If the custodial parent decides to relocate, he or she must receive consent from the non-custodial parent or approval by the court. Either situation will likely warrant a modification of the custody and visitation order. The court will again consider increasing vacation time visitation and may even order the custodial parent to  bear the child’s travel costs. [read more...]

    Custodial Interference

    [main custodial interference article]

    In some high-conflict cases, one parent may behave in such a manner towards the other that custody, visitation and communication with the child is severely impeded. This frustration of the other parent’s rights may provide adequate grounds for a change in custody. As noted above, the court gives preference to a parenting schedule which allows both parents regular and frequent contact with the child. From the court’s perspective, if one party denies the other those rights, it is ultimately the child who suffers. Therefore, it may be in the child’s best interest to modify the original custody order. [read more...]

    Child’s Preference

    As children get older, they often offer their own opinion and preference as to which parent they might like to reside. In no state does the court allow the child to choose. The final determination of custody (original or modified) always lies with the court – based on the best interest of the child.

    However, most states have rules which establish an age at which the court is required to consider the child’s preferences. In some states, that age is designated specifically. In others, the court must determine if the child is of sufficient age and capacity to form an intelligent opinion.

    Effect of Custody Modification on Child Support

    In some instances, a modification of custody and visitation will necessitate the modification of the child support order as well. Clearly, if primary physical custody is changed from one parent to the other, the newly-designated custodial parent will now receive child support. If visitation is substantially increased or decreased, that change may require an adjustment to child support as well, depending on the child support calculations of each specific state.

    Related posts:

    1. Parental Alienation
    2. How Can I Have My Child Support Order Modified?
    3. Do I still have to pay child support while the kids are visiting me?

    ]]>     http://myfamilylaw.com/library/children-parenting/modifying-a-custody-order/feed/ 0     Using Mediation to Avoid the High Costs of Divorce http://myfamilylaw.com/library/california/divorce-separation/using-mediation-to-avoid-the-high-costs-of-divorce/ http://myfamilylaw.com/library/california/divorce-separation/using-mediation-to-avoid-the-high-costs-of-divorce/#comments Wed, 17 Feb 2010 18:37:15 +0000 Jeremy http://myfamilylaw.com/library/?p=21336
  • Mediation
  • Mediation and Collaborative Divorce
  • Book Review: Divorce Without Court: A Guide to Mediation & Collaborative Divorce
    • ]]>     by Keith Dysart

    The idea of divorce brings out strong emotions in most people. Feelings of failure, regret and fear all make the idea almost unbearable. On top of the pain of a broken marriage you now must deal with the emotional and financial stress of divorce. Many of the preconceived ideas we have about divorce focus on the few cases that actually go to trial. Over publicized celebrity divorces and TV shows rarely reflect the truth about a typical divorce. The truth is litigating a divorce can be outrageously expensive, but very few divorces will ever make it to trial.

    The court does not have the time or resources to fully understand the intricacies of your family so they encourage private settlements. The court will likely order you to attend mediation, co-parenting classes and numerous hearings before you case may proceed to trial. Many people have embraced this trend toward private settlements and have hired attorneys and mediators to help them reach a settlement without court involvement. By choosing this path you can reduce the costs of your divorce and decide for yourself what best suits the needs of your family.

    In recent years mediation has been used as an effective alternative to litigation in numerous areas of law including family law. I understand that during a divorce emotions are running high and sitting down face to face to resolve your marital issues may not be a pleasant idea. However a mediator can provide you with a safe environment to openly discuss your concerns and help you work toward a mutual agreement. In addition issues like child custody may further benefit from your willingness to mediate because your children are unique and decisions made by you can take into account their special needs.

    Collaborative law offers another cost effective alternative to litigation. Collaborative law generally refers to settlement negotiations when both sides have agreed not to involve the court. With collaborative law each spouse may be represented by an attorney who negotiates on their behalf. The cost is higher than mediation but still may be significantly less expensive than litigating your divorce. Collaborative law may be appealing because each side may benefit from an attorney’s representation but it removes the threat and expense of litigation.

    As a family law attorney I understand that there are many stresses put on families and marriages during these economically challenging times and often these stresses play a major factor in divorce. My goal in this article is to help those considering divorce and provide them with the information they need to resolve their family law issues. By fully exploring your options you can decide on an approach to divorce that fits your needs.

    This article is meant only to provide information and is not intended as legal advice. If you have questions concerning your particular case you should make an appointment to talk to an attorney or mediator about your options.

    Keith Dysart is a Family Law Attorney and Mediator in Santa Cruz, CA
    http://www.dysartlawfirm.com/


    The idea of divorce brings out strong emotions in most people.  Feelings of failure, regret and fear all make the idea almost unbearable.  On top of the pain of a broken marriage you now must deal with the emotional and financial stress of divorce.  Many of the preconceived ideas we have about divorce focus on the few cases that actually go to trial.  Over publicized celebrity divorces and TV shows rarely reflect the truth about a typical divorce.  The truth is litigating a divorce can be outrageously expensive, but very few divorces will ever make it to trial.
    The court does not have the time or resources to fully understand the intricacies of your family so they encourage private settlements.  The court will likely order you to attend mediation, co-parenting classes and numerous hearings before you case may proceed to trial.  Many people have embraced this trend toward private settlements and have hired attorneys and mediators to help them reach a settlement without court involvement.  By choosing this path you can reduce the costs of your divorce and decide for yourself what best suits the needs of your family.
    In recent years mediation has been used as an effective alternative to litigation in numerous areas of law including family law.  I understand that during a divorce emotions are running high and sitting down face to face to resolve your marital issues may not be a pleasant idea.  However a mediator can provide you with a safe environment to openly discuss your concerns and help you work toward a mutual agreement.  In addition issues like child custody may further benefit from your willingness to mediate because your children are unique and decisions made by you can take into account their special needs.
    Collaborative law offers another cost effective alternative to litigation.  Collaborative law generally refers to settlement negotiations when both sides have agreed not to involve the court.  With collaborative law each spouse may be represented by an attorney who negotiates on their behalf.  The cost is higher than mediation but still may be significantly less expensive than litigating your divorce.  Collaborative law may be appealing because each side may benefit from an attorney’s representation but it removes the threat and expense of litigation.
    As a family law attorney I understand that there are many stresses put on families and marriages during these economically challenging times and often these stresses play a major factor in divorce.  My goal in this article is to help those considering divorce and provide them with the information they need to resolve their family law issues.  By fully exploring your options you can decide on an approach to divorce that fits your needs.
    This article is meant only to provide information and is not intended as legal advice.  If you have questions concerning your particular case you should make an appointment to talk to an attorney or mediator about your options.
    Keith Dysart, Family Law Attorney and Mediator in Santa Cruz CA
    http://www.dysartlawfirm.com

    Related posts:

    1. Mediation
    2. Mediation and Collaborative Divorce
    3. Book Review: Divorce Without Court: A Guide to Mediation & Collaborative Divorce

    ]]>     http://myfamilylaw.com/library/california/divorce-separation/using-mediation-to-avoid-the-high-costs-of-divorce/feed/ 1     Child Custody Court Forms by State http://myfamilylaw.com/library/children-parenting/custody-forms/ http://myfamilylaw.com/library/children-parenting/custody-forms/#comments Sun, 03 Jan 2010 06:50:40 +0000 Jeremy http://myfamilylaw.com/library/?p=6534
  • Virginia Public Departments and Services
  • Book Review: Your Right to Child Custody, Visitation and Support
  • Child Custody and Visitation
    • ]]>     Alabama
    • The Alabama courts do not have online forms for child custody.ou

    Alaska

    Arizona

    Arkansas

    California

    Colorado

    Connecticut

    Delaware

    District of Columbia

    Florida

    Georgia

    Hawaii

    Idaho

    Illinois

    Indiana

    Iowa

    • The Iowa courts do not have online forms for child custody.

    Kansas

    Kentucky

    Louisiana

    Maine

    Maryland

    Massachusetts

    Michigan

    Minnesota

    Mississippi

    Missouri

    Montana

    Nebraska

    Nevada

    New Hampshire

    New Jersey

    New Mexico

    New York

    North Carolina

    North Dakota

    Ohio

    Oklahoma

    Oregon

    Pennsylvania

    Rhode Island

    South Carolina

    South Dakota

    Tennessee

    Texas

    Utah

    Vermont

    Virginia

    Washington

    West Virginia

    Wisconsin

    Wyoming


    Related posts:

    1. Virginia Public Departments and Services
    2. Book Review: Your Right to Child Custody, Visitation and Support
    3. Child Custody and Visitation

    ]]>     http://myfamilylaw.com/library/children-parenting/custody-forms/feed/ 4     Bankruptcy Before Divorce http://myfamilylaw.com/library/financial-property/bankruptcy-and-divorce/bankruptcy-before-divorce/ http://myfamilylaw.com/library/financial-property/bankruptcy-and-divorce/bankruptcy-before-divorce/#comments Fri, 01 Jan 2010 22:48:23 +0000 K. McKinney http://myfamilylaw.com/library/?p=6524
  • Bankruptcy During Divorce
  • Bankruptcy & Divorce: an Overview
  • Bankruptcy After Divorce
    • ]]>     Money problem and marital problems often go hand-in-hand, unfortunately. And, often, the search for a divorce attorney coincides with the search for a bankruptcy attorney. There are several reasons, though, that a couple may want to consider delaying the divorce until after the bankruptcy is completed.

    Why File Bankruptcy Before Filing for Divorce?

    Bankruptcy will eliminate most debts (and assets) and will result in a simplified divorce negotiation process. Rather than arguing over who is responsible for certain debts, they can be discharged through bankruptcy. Of course, assets (if there are any) will most likely be liquidated to pay joint debts in the process as well.

    The elimination of both debts and assets though can make the process simpler. It can also cut filing costs and attorneys’ fees as well as help a divorcing couple avoid future discord over the discharge of jointly obligated debt.

    And that can be key to a “successful” divorce. Couples can agree, via a divorce settlement agreement, to each be responsible for certain marital debts. If there is no settlement, the court can order one party or the other to pay some or all of the marital debt. However, none of this (neither the settlement nor the divorce judgment) is binding on the creditor.

    Creditors Not Bound by Divorce Settlement Agreement or Judgment

    If a husband is ordered to pay a joint credit card account by the court but later falls behind on payments, the wife is still technically an account holder as far as the lender is concerned. The wife will still be on the hook for the debt. She can then go back to court against the husband to enforce the judgment – but the judgment itself is not binding on the creditor. The situation can get even stickier if the ex-husband then takes bankruptcy and has the debt discharged.

    One answer then to these potential problems is to file bankruptcy before filing for divorce.

    Automatic Stay and Discharge

    Because of the automatic stay in a bankruptcy case, filing for bankruptcy will require all creditors and collections agencies from calling or garnishing wages or accounts until the bankruptcy has been completed. This can temporarily take the financial pressure off of a separating or divorcing couple so that they can work out the details of a divorce settlement.

    Ultimately, in a Chapter 7 bankruptcy filing (which is most common for individuals and married couples), the marital debts will be discharged – wiped clean. Some assets will be declared exempt (depending on your state of residence) and others will be liquidated to pay creditors.

    A bankruptcy will NOT, however, keep any party from having to pay child support or spousal support. It will not generally discharge student loans or criminal restitution. It will also not vacate the requirements of most divorce property settlements.

    Consult with Divorce Lawyer and Bankruptcy Lawyer

    While your divorce attorney is probably relatively well-versed in bankruptcy law, it may be best to work with both a family law attorney and an attorney experienced in bankruptcy law. Your divorce attorney can most likely point you in the direction of a bankruptcy lawyer he or she has worked well with in the past.

    Related posts:

    1. Bankruptcy During Divorce
    2. Bankruptcy & Divorce: an Overview
    3. Bankruptcy After Divorce

    ]]>     http://myfamilylaw.com/library/financial-property/bankruptcy-and-divorce/bankruptcy-before-divorce/feed/ 0     Alienation of Affection http://myfamilylaw.com/library/laws/alienation-of-affection/ http://myfamilylaw.com/library/laws/alienation-of-affection/#comments Sat, 26 Dec 2009 22:43:41 +0000 Jeremy http://myfamilylaw.com/library/?p=6476
  • Adultery
  • Parental Alienation
  • What is the Difference Between Civil and Criminal Litigation?
    • ]]>     Can I Sue if My Spouse Cheats?

    The spouse who was cheated on – the “injured” spouse – can, in a few states states, still bring legal action against the cheating party for “alienation of affection.” Sometimes referred to as “Criminal Conversation,” “Heart Balm Torts,” “Revenge,” or “Spousal Theft,” alienation of affection(s) is a legal action charging someone with the intentional and malicious interference with marriage relations. Typically this occurs when one spouse has been cheating on the other (committing adultery), and is caught.

    What Must Be Proven?

    An alienation of affection lawsuit must prove that:

    • Love existed between the married spouses.
    • Love between the married couple was destroyed (or “alienated”).
    • A third party’s malicious conduct contributed to or caused the loss of affection.

    What States Allow This Type of Legal Action?

    Most states in the United States have done away with this type of lawsuit, considering it to be archaic and revengeful. But as of 12/2009 a few states do still recognize alienation of affection: Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota, and Utah.

    Is Alienation of Affection Recognized in My State?

    Alabama

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    Alaska

    The issue of alienation of affection is not addressed by Alaska law (neither state law nor case law).

    Arizona

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    Arkansas

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    California

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    Colorado

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    Connecticut

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    Delaware

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    District of Columbia

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    Florida

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    Georgia

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    Hawaii

    Yes, alienation of affection lawsuits can still be brought.

    Idaho

    No, alienation of affection lawsuits were abolished through judicial decision.

    Illinois

    Yes, alienation of affection lawsuits can still be brought.

    Indiana

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    Iowa

    No, alienation of affection lawsuits were abolished through judicial decision.

    Kansas

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    Kentucky

    No, alienation of affection lawsuits were abolished through judicial decision.

    Louisiana

    In 1927, in the case of Moulin v. Monteleone, 165 La. 169, 115 So. 447, actions for alienation of affection were abolished.

    Maine

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    Maryland

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    Massachusetts

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    Michigan

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    Minnesota

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    Mississippi

    Yes, alienation of affection lawsuits can still be brought.

    Missouri

    No, on June 17, 2003, Missouri’s highest court abolished the state’s alienation of affection law.

    Montana

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    Nebraska

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    Nevada

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    New Hampshire

    No. According to Title XLIII, Chapter 460:2, “No damages shall be allowed to either spouse in any action based on alienation of the affections of the other spouse.”

    New Jersey

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    New Mexico

    Yes, alienation of affection lawsuits can still be brought.

    New York

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    North Carolina

    Yes, alienation of affection lawsuits can still be brought, although as of October 2009, there are several new restrictions, including that if the extramarital affair started after a married couple is separated, the alienation of affection law cannot be used: see ncga.state.nc.us – HB 1110

    North Dakota

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    Ohio

    No, in 1985, alienation of affection suits were abolished by General Laws c. 207, Sect. 47B, inserted by St. 1985, c. 74 Sect. 1.

    Oklahoma

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    Oregon

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    Pennsylvania

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    Rhode Island

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    South Carolina

    No, alienation of affection lawsuits were abolished through judicial decision.

    South Dakota

    Yes, alienation of affection lawsuits can still be brought.

    Tennessee

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    Texas

    No, in 1997, Family Code, Chapter 1.107 was enacted to abolish the right to bring an alienation of affection lawsuit.

    Utah

    Yes, alienation of affection lawsuits can still be brought

    Vermont

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    Virginia

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    Washington

    No, alienation of affection lawsuits were abolished through judicial decision.

    West Virginia

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    Wisconsin

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    Wyoming

    No, legislation was enacted to abolish the right to bring an alienation of affection lawsuit.

    source: about.com

    Related posts:

    1. Adultery
    2. Parental Alienation
    3. What is the Difference Between Civil and Criminal Litigation?

    ]]>     http://myfamilylaw.com/library/laws/alienation-of-affection/feed/ 0     Bankruptcy & Divorce: an Overview http://myfamilylaw.com/library/financial-property/bankruptcy-and-divorce/ http://myfamilylaw.com/library/financial-property/bankruptcy-and-divorce/#comments Tue, 01 Dec 2009 17:12:27 +0000 K. McKinney http://myfamilylaw.com/library/?p=6228
  • Bankruptcy Before Divorce
  • Bankruptcy During Divorce
  • Bankruptcy After Divorce
    • ]]>     Many married couples argue about money – how much, how little, what is owed, who earns, who spends. In fact, three out of four married couples reportedly argue about money. 70% report that money places a major stress on the married relationship. So it’s no shock that marital debt is often a hotly disputed topic in a divorce. Unsurprisingly, the subject of bankruptcy is a relatively common issue in family court. It is important for those contemplating divorce, or in the midst of a divorce, or even those who are already divorced to know the consequences of bankruptcy on their financial situation.

    Bankruptcy is a legal process, filed in a federal bankruptcy court which allows individuals or businesses (known in bankruptcy court as debtors) who owe creditors more money than they can to pay to either work out a plan to repay the debt or completely eliminate or “discharge” the debts.

    Bankruptcy During Divorce

    The timing of a bankruptcy filing can have a tremendous impact on a divorcing or divorced couple. A bankruptcy filing during a divorce can delay certain aspects of the divorce process while the courts sort out the impact of the automatic stay on the collection of child support and/or spousal support as well as on the distribution of property and the existence of certain debt.

    Divorcing couples considering bankruptcy should discuss the feasibility of a joint bankruptcy filing prior to filing for divorce. If a joint filing is not desirable, couples should be cognizant of the possible impact a future bankruptcy could have on any settlement agreement. [read more...]

    Bankruptcy After Divorce

    Bankruptcy filed after a divorce has been finalized may have three areas of impact. First, collection of any past due support may be halted pending the resolution of the bankruptcy. Second, a yet-unpaid property settlement obligation could potentially be discharged in the bankruptcy. And third, a joint debt assumed by the debtor-party could be discharged as to the debtor but not as to the co-signing ex-spouse who believed he or she was relieved of the necessity to pay the debt by order of the divorce court.

    Each of these situations could cause significant hardship on the non-filing ex-spouse and should be discussed with a bankruptcy and/or family law attorney. [read more...]

    Types of Bankruptcy

    Individuals can file a Chapter 13 bankruptcy, in which the debtor comes up with a plan to repay creditors over time. They can also choose to file Chapter 7 bankruptcy, in which eligible debts are discharged. The decision as to which type of bankruptcy to file should be made after careful examination of the situation, assets and debts and after speaking with an experienced bankruptcy lawyer.

    Bankruptcy in General

    In order to file for bankruptcy, a debtor must tell the court in detail about all of his or her assets and debts. Depending on the type of bankruptcy chosen, the debtor may be forced to liquidate any remaining assets in order to pay debts.

    Debtors are allowed to exempt certain property from the bankruptcy court. Exempt property is generally defined by state law but it usually includes personal jewelry, vehicles up to a certain value, equity in a home up to a certain value and tools necessary to allow the debtor to continue to work.

    Additionally, 401k and IRA accounts are not considered property of an estate and are not considered assets of the debtor’s estate by the bankruptcy court. Social Security benefits are similarly protected.

    As noted above, equity in a home is typically exempt up to a certain amount. That amount, though, varies widely from state to state. Whether a mortgage loan is in foreclosure and what type of bankruptcy being filed will also bear on whether the debtor will be able to keep his or her home after the bankruptcy.

    All non-exempt property will be pooled and liquidated in order to pay debtors some percentage of their outstanding debt balance. The remaining debt is then discharged – with certain exceptions such as child support and spousal support, which are never dischargeable in bankruptcy.

    Related posts:

    1. Bankruptcy Before Divorce
    2. Bankruptcy During Divorce
    3. Bankruptcy After Divorce

    ]]>     http://myfamilylaw.com/library/financial-property/bankruptcy-and-divorce/feed/ 0     Bankruptcy After Divorce http://myfamilylaw.com/library/financial-property/bankruptcy-and-divorce/bankruptcy-after-divorce/ http://myfamilylaw.com/library/financial-property/bankruptcy-and-divorce/bankruptcy-after-divorce/#comments Tue, 01 Dec 2009 14:18:39 +0000 K. McKinney http://myfamilylaw.com/library/?p=6232
  • Bankruptcy During Divorce
  • Bankruptcy & Divorce: an Overview
  • Bankruptcy Before Divorce
    • ]]>     The divorce process can often be emotionally (and financially) draining. At the end of the long road, you have a settlement agreement and/or a divorce decree by which you are prepared to abide. And then your ex-spouse decides to file for bankruptcy protection.

    What now? The bankruptcy process as an ex-spouse and creditor can be similarly emotional and financially difficult. The basic information about post-divorce obligations and bankruptcy though can do much to set your mind at ease.

    What Happens to Payments After an Ex Files for Bankruptcy

    When your ex-spouse files for bankruptcy, all efforts to collect any debts must stop pursuant to the court’s automatic stay. All creditors must cease collection activity pending the resolution of the bankruptcy case unless they fit into an exception or are granted special permission by the court. A court proceeding to establish or modify a support award need not stop under the stay order, according to federal law.

    In a Chapter 7 filing, support can still be collected from post-bankrupcty-filing income of the debtor as those funds are not considered part of the bankruptcy estate. In a Chapter 13 filing, in which the debtor restructures debt and establishes a payment plan, post-filing income is still considered part of the bankruptcy estate and cannot be touched.

    How Bankruptcy Affects Support Obligations

    Child support and spousal support are NOT dischargeable in bankruptcy. Even if a large arrearage exists at the time of the bankruptcy filing, it will not be wiped away.

    Further, under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (bankruptcy reform legislation), unpaid child support and alimony is given priority over any other debt, including taxes owed. A spouse who is owed back support must file a “proof of claim” like every other creditor in order to receive payment.

    (The spouse receiving support will receive written notice of the bankruptcy filing as will the state support enforcement agency. If you are NOT provided with official notice but hear about the bankruptcy filing, don’t ignore it. Consult an attorney immediately to protect your rights.)

    Bankruptcy’s Effect on Property Settlements

    Under the old bankruptcy law, property settlement obligations and obligations to pay for debts in a divorce decree were generally dischargeable in bankruptcy. There was a statutory balancing test applicable when deciding if such an obligation should not be discharged. In the reformed bankruptcy code, however, this language was drastically changed.

    Now, any obligation to a spouse, former spouse or child incurred in the course of a divorce or separation, by settlement agreement or divorce decree, is NOT dischargeable. This applies to property settlement obligations in which one spouse is required to pay the other some sort of equalization payment. It also applies to obligations to pay debt as ordered in a divorce decree. It doesn’t prohibit the debtor from obtaining a discharge of the debt from the creditor, but prohibits the debtor spouse from discharging any indemnification or hold harmless provision provided in the divorce decree or settlement agreement.

    Going Back to Divorce Court After Bankruptcy

    Although the new bankruptcy laws will keep your entitlement from being discharged, you may still need to return to family court after your ex-spouse’s bankruptcy.

    If the filing spouse was obligated to pay a joint debt which was then discharged in bankruptcy, the non-filing spouse may still be on the hook for the debt as far as the creditor is concerned. If that is the case, you may need to return to the divorce judge to enforce an indemnification or hold harmless provision in the divorce decree. A motion to modify can be filed, asking for establishment or increase of spousal support to cover the additional debt amount you may now be obligated to pay to the creditor.

    On the flip side, if you are the support-paying spouse who has proceeded through bankruptcy, you may choose to present your current financial situation to the court and seek a downward modification of support. Arrearages can add up quickly so don’t delay this request if you are having legitimate trouble paying your support obligations.

    Just as in the original divorce process, the post-divorce bankruptcy process is wrought with emotion and complicated legal requirements. As always, it is best to consult an attorney to help steer you through.

    Related posts:

    1. Bankruptcy During Divorce
    2. Bankruptcy & Divorce: an Overview
    3. Bankruptcy Before Divorce

    ]]>     http://myfamilylaw.com/library/financial-property/bankruptcy-and-divorce/bankruptcy-after-divorce/feed/ 0     Bankruptcy During Divorce http://myfamilylaw.com/library/financial-property/bankruptcy-and-divorce/bankruptcy-during-divorce/ http://myfamilylaw.com/library/financial-property/bankruptcy-and-divorce/bankruptcy-during-divorce/#comments Tue, 01 Dec 2009 14:16:57 +0000 K. McKinney http://myfamilylaw.com/library/?p=6230
  • Bankruptcy After Divorce
  • Bankruptcy & Divorce: an Overview
  • Bankruptcy Before Divorce
    • ]]>     Money problems are often a large component of marital stress. Especially in the current economy, it is not uncommon for a couple splitting up to have more debt than assets to divide in a divorce.

    In some divorces, one or both parties consider filing for bankruptcy as a result of overwhelming debt. Individuals are best counseled to consult with an experienced bankruptcy attorney and a family law attorney when facing a divorce AND considering bankruptcy.

    Consider Filing for Bankruptcy BEFORE Filing for Divorce

    Depending on your circumstances, it may be best to file a joint bankruptcy prior to filing for divorce. Rather than arguing over who is responsible for certain debts, they can be discharged through bankruptcy. Of course, assets (if there are any) will most likely be liquidated to pay joint debts in the process as well.

    The elimination of both debts and assets can result in a simplified divorce negotiation process. It can also cut filing costs and attorneys’ fees as well as help a divorcing couple avoid future discord over the discharge of jointly obligated debt.

    If One Spouse Files for Bankruptcy While a Divorce is Pending

    After one spouse files for bankruptcy, the first thing that happens is that the bankruptcy court issues an automatic stay. The automatic stay prevents creditors from collecting on most debts during the pendency of the bankruptcy proceeding.

    The automatic stay does NOT prevent the non-filing spouse from seeking a child support or spousal support order in the family court however. It can cause problems collecting that support until the bankruptcy case has concluded.

    The bankruptcy filing may throw a wrench into the divorce works with regard to distribution of marital property. Even if only one spouse files for bankruptcy, in most cases, all the community or marital property becomes a part of the bankruptcy estate and is available to pay debts. The divorce court can only divide the property that is determined by the bankruptcy court to be “exempt.”

    Exempt property is not considered part of the bankruptcy estate and is not available for liquidation and distribution to creditors. Exemptions are determined by federal and state law. They can include: a specific amount of equity in the debtor’s residence (in some states, this amount is extremely low; in others, it is high enough that many homes are completely exempt), a specific amount of equity in a single motor vehicle, certain personal jewelry, clothing and household goods and tools of the trade which allow the debtor to work.

    Child Support and Spousal Support

    As noted above, the automatic stay does not preclude one spouse from obtaining a support order against the other during the bankruptcy. A collection action can even continue if it targets property that is not part of the bankruptcy estate. Unfortunately, the legal definition of the bankruptcy estate is so broad that this is still difficult.

    If the bankruptcy filing is a Chapter 7 petition, any income earned by the debtor after the filing of the petition is not part of the estate and is therefore available for collection of support. If the filing is a Chapter 13 petition, post-petition earnings of the debtor are part of the bankruptcy estate. Because those funds are needed to pay claims, the court must issue a specific order granting payment of any support arrearage until the case is closed and the stay is lifted.

    The good news is that all debts – child support, spousal support or property settlement – owed to a former spouse are excepted from discharge in bankruptcy. They will NOT be wiped clean after a bankruptcy. Debts for support are even entitled to priority payment from the bankruptcy estate.

    Property Settlements and Bankruptcy

    Prior to the most recent bankruptcy reform legislation passed in 2005, debts related to a divorce property settlement were presumed to be “nondischargeable” in bankruptcy but there were exceptions. The debt could be discharged if the debtor showed that he could not pay the debt and still take care of himself, his dependents, and his business, or that discharging the debt would result in a benefit to the debtor that outweighs the harm that would be caused to the former spouse or child by non-payment.

    Now, all obligations between former spouses as set forth in a divorce decree or settlement agreement are considered non-dischargeable in bankruptcy without exception. This includes an award of attorneys’  fees.

    Protect Yourself Against Future Non-Payment by Soon-to-Be Ex-Spouse

    Even if your ex-spouse cannot wipe out his or her obligations to you in bankruptcy anymore, they still might not voluntarily pay. Support obligations can be enforced with the help of the court and/or state agencies.

    Property settlements though might be more difficult to collect. You may want to consider placing a lien against your ex-spouse’s property to secure the debt.

    If your ex-spouse assumes a joint debt in the divorce and later takes bankruptcy while your name is still attached to the debt, the creditor may look to you for payment regardless of the divorce decree or settlement agreement. You should consider requiring, via the settlement agreement, any joint debt to be refinanced into your ex-spouse’s name alone as soon as possible after the divorce. The agreement should include a “hold harmless” or “indemnity” clause, requiring your ex-spouse to pay certain debts or repay you if a creditor makes you pay the debt.

    In any event, the intersection of bankruptcy and divorce can be sticky. It is always best to consult an attorney about your specific needs.

    Related posts:

    1. Bankruptcy After Divorce
    2. Bankruptcy & Divorce: an Overview
    3. Bankruptcy Before Divorce

    ]]>     http://myfamilylaw.com/library/financial-property/bankruptcy-and-divorce/bankruptcy-during-divorce/feed/ 0     What’s the difference between a divorce and a legal separation? http://myfamilylaw.com/library/divorce-separation/faq-whats-the-difference-between-a-divorce-and-a-legal-separation/ http://myfamilylaw.com/library/divorce-separation/faq-whats-the-difference-between-a-divorce-and-a-legal-separation/#comments Mon, 09 Nov 2009 04:31:30 +0000 MyFamilyLaw Admin http://myfamilylaw.com/library/?p=6210
  • Legal Separation
  • Divorce and Legal Separation
  • What's the Difference Between Divorce and Annulment?
    • ]]>     Legal Differences Between Dissolving a Marriage, and Merely Separating

    When the marriage appears to be failing, many couples choose to separate first while others seek a divorce right away. What’s the difference?

    The most distinct difference between separation and divorce is that a divorce legally and permanently terminates the marriage. Once the divorce is final (and subject to any waiting periods establish by the laws of your state), both parties are free to remarry someone else without any repercussions.

    A separation, on the other hand, does not terminate the marriage and does not give the parties the right to remarry without first getting a divorce.

    Other aspects of the split – such as child support, property division, custody issues and alimony can all be addressed through a legal separation just as they would be in a divorce and in many states, the legal separation agreement can later be converted to a divorce at the request of one or both of the parties.

    So, what’s the point of getting a legal separation?

    While there are a few different types of separation, a legal separation will protect your interests as well as that of your spouse while the two of you decide how to proceed as the separation is documented with a separation agreement or court order. Often couples find a way to work things out and choose to reconcile. With a legal separation, there would be no need to remarry as the marriage was never terminated. For some people, their religious or cultural beliefs prohibit them from divorcing. A legal separation would give them all of the legal protections of a divorce, without the divorce.

    And in the event that you do later decide divorce is the right choice, that decision is likely made with a clearer state of mind as you’ve allowed some time for the emotions to settle. In fact, many states require that couples separate first before granting a divorce to be sure that the divorce is really what they want and not just a decision made in the heat of the moment.

    If you would like to learn more about legal separation, you may be interested in this book about “controlled separation” as well as this book about separation management techniques.

    Related posts:

    1. Legal Separation
    2. Divorce and Legal Separation
    3. What's the Difference Between Divorce and Annulment?

    ]]>     http://myfamilylaw.com/library/divorce-separation/faq-whats-the-difference-between-a-divorce-and-a-legal-separation/feed/ 2     What is the Visa Lottery Program? http://myfamilylaw.com/library/foreign-spouses/faq-what-is-the-visa-lottery-program/ http://myfamilylaw.com/library/foreign-spouses/faq-what-is-the-visa-lottery-program/#comments Fri, 30 Oct 2009 23:09:16 +0000 MyFamilyLaw Admin http://myfamilylaw.com/library/?p=6132
  • Foreign Spouses
  • What’s the Difference Between A Temporary Visa And A Green Card?
  • Book Review: Immigration Made Simple
    • ]]>     Obtaining an Visas for a Foreign Spouse

    The Immigration Act of 1990 created the Diversity Immigrant Visa Lottery, a program that provides 50,000 green cards to citizens of countries that sent the least number of immigrants to the U.S. in the preceding five year period.

    The list of eligible countries changes each year depending upon how many immigrants came to the U.S. from a particular country. For example, those born in Brazil, Canada, India and Mexico (along with several others) are not currently eligible for the lottery program as their application period expired in 2007. However, if the number of immigrants from these countries is reduced in proportion to the rest of the world in the next few years, they may again become eligible for the lottery program.

    You can also meet the residency requirement if your spouse was born in an eligible country, assuming that your spouse also receives a visa and enter the U.S. with you.

    Eligible recipients must also meet an employability requirement: you must either have a high school diploma (or equivalent) or at least two years’ experience in a skilled profession.

    For more on the Visa Lottery program, read the book Immigration Made Simple.

    Related posts:

    1. Foreign Spouses
    2. What’s the Difference Between A Temporary Visa And A Green Card?
    3. Book Review: Immigration Made Simple

    ]]>     http://myfamilylaw.com/library/foreign-spouses/faq-what-is-the-visa-lottery-program/feed/ 0