Thursday, May 31, 2012

Custody of Minor Children—What is “Custody”?

"Custody" means joint legal custody, sole legal custody, joint physical custody or sole physical custody or any combination thereof;

"Joint legal custody" means that the parents share the decision-making rights, responsibilities, and authority relating to the health, education and welfare of the child, and, unless allocated, apportioned, or decreed, the parents shall confer with one another in the exercise of decision-making rights, responsibilities, and authority;

"Joint physical custody" means an order awarding each of the parents significant, but not necessarily equal, periods of time during which a child resides with or is under the care and supervision of each of the parents. Joint physical custody shall be shared by the parents in such a way as to assure the child of frequent, continuing and meaningful contact with both parents;

"Third-party custody" means a third party, such as a grandparent or guardian is designated as a legal and physical custodian.

Thursday, May 24, 2012

What An Automatic Stay Can Do For You

Upon filing for bankruptcy, an injunction goes into effect immediately; this injunction is called an automatic stay. An automatic stay halts collection activities such as filing or continuing a lawsuit, making requests for payment, and notifying credit reporting agencies of an unpaid debt. An automatic stay is particularly helpful when a debtor is at risk of being foreclosed on, evicted, having utilities turned off, or found in contempt for failing to pay child support. This stay is a powerful reason in itself to file for bankruptcy.

Below are some of the situations that the automatic stay can assist with:

Foreclosure: If your home or other real property is being foreclosed upon, the automatic stay will temporarily halt the sale in a Chapter 7 filing, or permanently stop the sale in a Chapter 13 filing where a plan is filed to catch up the arrears.

Utilities: An automatic stay can assist when you’re behind on your utility bills if you are receiving threats to disconnect your gas, electric, water or telephone services. The automatic stay will assist in preventing disconnection for at least 20 days.

Eviction: If you are facing eviction from your home the automatic stay may offer some momentary help. In the instance that your landlord already has a judgment of possession against you, the automatic stay will not affect these evictions proceedings. Additionally, the automatic stay cannot help you if the landlord alleges that you’ve destroyed the property or are using controlled substances there. In some cases, the automatic stay may help you to stay a few more days or weeks, however the landlord will most likely ask the court to lift the stay and proceed with the eviction.

Repossession: If your vehicle is in danger of being repossessed, filing bankruptcy can stop the repossession with the automatic stay. In a chapter 13 filing, a vehicle that has been repossessed recently but not yet auctioned off can usually be retrieved.

Garnishment: When bankruptcy is filed, wage garnishments cease; additionally, you may be able to discharge the debt in bankruptcy. An automatic stay can often prevent collection efforts from overpayment of public benefits, however, the automatic stay does not prevent the agency from denying or terminating benefits in the future for this reason.

Below are some of the situations that the automatic stay cannot assist you with:

An automatic stay does not help with certain tax proceedings. The IRS can still issue a tax deficiency notice, audit you, demand a tax return, issue a tax assessment or request payment of an assessment. The automatic stay will stop the IRS from issuing new tax liens or seizing property and income.

The automatic stay will not help you in during a lawsuit against you seeking to determine paternity or to establish, modify or collect child support.

Creditors can ask the court to lift (remove) the automatic stay for various reasons. This generally happens 21 days or more after bankruptcy was filed. When there is any doubt about what an automatic stay can assist with, contact your bankruptcy attorney at Heartland Law for more detailed information specific to your case.

Tuesday, May 22, 2012

Credit Card Use Before Bankruptcy

If you plan on filing for bankruptcy, it is never a good idea to accrue new debt right beforehand. While it might be tempting, using your credit cards immediately before filing for bankruptcy can lead to complications that include not being able to discharge that portion of your debt.

The majority of credit card debt is dischargeable through filing for bankruptcy, however credit card charges of $600 or more in luxury items, charged within the 90 days prior to filing bankruptcy are considered non-dischargeable. A credit card charge that transpires within the 90 days before filing may not be discharged if the creditor can prove that there was no intention of paying back the debt. This also goes for cash advances.

Additionally, some creditors will look at overall credit card usage in the 6 months prior to filing and object to a discharge if the charges are excessive and appear to be done in contemplation of bankruptcy. So the best rule of thumb is not to use any credit cards right before filing for bankruptcy once you have met with an attorney and/or know you plan to file bankruptcy.

Cash advances and certain purchases that occurred immediately before filling bankruptcy can be perceived to be fraudulent. So if you purchased a computer, a new car or an expensive designer bag and plan on filing for bankruptcy, be mindful that a lawsuit from your credit card company objecting to your discharge may follow.

Be sure to inform your bankruptcy attorney of any purchases of $600 or more that you’ve made on your credit cards because in most instances it may be in your better interest to delay filing until after the 90 day presumption period has passed.

If purchases right before filing for bankruptcy are for necessities like food and diapers, typically your credit card company will be slightly more understanding. Using a credit card to buy essentials like food can also be a good indicator of financial distress to a credit card company. However they won’t be so understanding when the purchase is a luxury item, or if the necessities are excessive and total a lot of money.

If you are unsure about any purchases you’ve made within the 90 days before you are planning on filing for bankruptcy and are wondering if your credit card debt can be discharged, consult with your bankruptcy attorney for more information.

Heartland Law LLC
700 E. 8th #700
Kansas City, MO 64106
Phone 816-842-6700
Fax 816-337-3812