Managing Stress During the Holiday Season

While the holidays bring plenty of cheer and laughter, they also tend to bring a great deal of stress. Planning face-time with family, coordinating activities, and managing the financial aspect of the holiday season can often become overwhelming. The following suggestions from the Mayo Clinic aim to reduce holiday-related pressure and anxiety:

Stick to a budget. It might be helpful to decide in advance how much you are going to spend. The trick is to then stick to it. Remember that gifts and presents do not equate to happiness. Do not extend beyond your means. If you have a large family or are traveling, consider other gift-giving arrangements. Some alternatives include donating to a charity in someone’s name or exchanging homemade gifts.

Plan ahead to avoid becoming overwhelmed. Trying to visit all of the family in a single day can be exhausting. Spreading family visits over the course of several days will allow you to make the most of the time you do spend with relatives. If certain relatives drive you crazy, consider activities that minimize the amount of time you spend together, like a cup of coffee or a quick lunch. Establishing some organizational tools can also help minimize unnecessary stress. For example, generating lists can help keep you focused while shopping or planning meals and activities.

Be flexible and realistic. Striving for utter perfection can often lead to disappointment when things do not pan out as hoped. The ability to make adjustments along the way is essential. Do not be afraid to adopt new traditions that better suit your family’s needs. Remember that traditions can grow and change as your family does and not every year has to be exactly like the one before.

Maintain healthy habits. The holidays are full of temptation. Remember to keep everything in moderation. Overindulgence can often lead to feelings of guilt. Try to strike a balance between some indulgence and maintaining your regular habits and routines. Exercise regularly and make sure you get enough sleep. Engaging the family in physical activities together can help make those healthy routines seem a little more fun.

Be aware of your feelings. Holidays may not necessarily be happy and joyous, particularly for those who have lost a loved one. Take the time to acknowledge and work through your emotions. If you are feeling isolated, reach out by volunteering or get involved in community events. When dealing with pushy family members, do not be afraid to say no. At the same time, do not be afraid to ask for help when you are feeling swamped. Openness and honesty can prevent harboring frustration, anger, and resentment. Take some time for yourself and relax as well.

For divorced families, the holidays can often be particularly challenging. The American Psychological Association offers several key pieces of advice for the holiday season, beginning with the importance of setting aside differences and laying down the sword. Put the needs of your children first. Encourage your children to spend time with your former spouse and reassure them that you will be fine when they do. Do not put unnecessary pressure on your children. When visits are not possible, technology like Skype can help facilitate contact between family members during the holiday season.

Sources:

“Stress, depression and the holidays: Tips for coping,” Mayo Clinic, available at http://www.mayoclinic.com/health/stress/MH00030

Dr. Elaine Ducharme, “10 Tips for Managing Family Stress at Holidays,” American Psychological Association, available at http://www.yourmindyourbody.org/family-stress-during-the-holidays/

Contributed by: Kelly Thompson, Law Clerk

What happens if I don’t reaffirm my mortgage in a chapter 7 bankruptcy?

A reaffirmation agreement is a document that is executed after your bankruptcy case is filed. It renews your obligation to a secured creditor, who has the right to repossess a vehicle or foreclose on your property if you fall behind on payments post-filing. It also makes you responsible for any deficiency balance after the sale of the property. It basically strips that debt of the bankruptcy protection. However, there are many benefits to reaffirming a debt too, including an easier time refinancing and positive reporting on your credit report.

If you intend to keep a house, vehicle, or piece of property secured by a lien, the creditor may prepare a reaffirmation agreement and forward it to your attorney. It is the Creditor who is responsible for preparing these agreements and they cannot be forced to do to. If you choose to sign a reaffirmation agreement generally your attorney’s office completes the required information, forwards it to you for review and signature, then it gets sent back to the creditor for filing with the bankruptcy court. If your budget (Schedules I and J) shows you can afford the payment and that it is not a hardship, no hearing is necessary (in WDMO and District of Kansas). The creditor files the agreement with the court and you are responsible for that debt regardless of your bankruptcy filing.

Not reaffirming a debt, especially a mortgage can sound like a good idea to you initially. It seems as though you can just pay each month and remain in the property. It is true that state contract law protects you to the extent that if you keep up with payments, the property cannot be taken away. And if something does happen financially in the future, such as illness or loss of income, you can surrender the house or car without having to worry about the deficiency balance. Because if no reaffirmation agreement was filed, it means the debt was discharged. And for the most part, that can be true. But, you need to be sure to speak to your attorney about the best option for you because there can be some consequences to not reaffirming a property in your chapter 7 bankruptcy.

One big problem with not reaffirming is credit reporting. If you don’t reaffirm the mortgage, the creditor will likely stop reporting payments to the credit bureaus even though you are making the payments on time each month. The mortgage debt may appear as being discharged in bankruptcy. So, your credit score may take a hit. This can make getting a new loan difficult. Another major problem can be with refinancing or modification. Many lenders will not refinance or modify a loan if a reaffirmation agreement was never filed. So, you will likely be locked into the original loan terms that you have until you decide to sell the property or let it foreclose. It can leave you with few, if any options if you find that the payments are no longer affordable. At that point your only option may be to surrender the property and walk away. And on that note, there are a few things to keep in mind if you are facing foreclosure. Until the property is transferred out of your name (after the foreclosure sale), you need to keep insurance on the property, keep up with maintenance, winterize and secure the property if vacant, and ensure compliance with city rules and codes. As long as it’s in your name, you are responsible for anything that happens to the property, and those fines and costs imposed by a city code violation, fire, etc. are not dischargeable if they happened after your bankruptcy was filed.

So, overall the best option is to speak to your bankruptcy attorney about your options with reaffirming a debt, especially a mortgage debt. They will be able to give you the best advice for your particular situation.

Contributions by Kelley Snyder, Paralegal

Sources:

http://www.bankruptcylawnetwork.com/refinancing-without-reaffirming-in-bankruptcy/

http://www.bankrate.com/brm/news/bankruptcy/20061121_debts_reaffirmed_a1.asp

http://www.loansafe.org/what-happens-if-you-do-not-reaffirm-your-mortgage-in-bankruptcy

Child Support and Children in College

In Missouri, a parent’s obligation to pay child support generally ends when the child turns eighteen years old. If the child is enrolled in college, however, the child support obligation may continue if certain conditions are met.

Under Mo. Rev. Stat. § 452.340(5), the child support obligation will continue if the child enrolls in an institution of vocational or higher education prior to the October that follows the child’s graduation from high school. An “institution of vocational education” encompasses any postsecondary schooling or training where the child attends classes on a regular basis for a fee or tuition. An “institution of higher education” includes colleges, community colleges, or universities.

For the support obligation to continue, the child must be enrolled in and complete twelve credit hours each semester. Summer semesters are excluded. If the child withdraws from a course, the credit hours for that course will not count as part of the twelve required hours.

By statute, the child must provide a transcript to each parent at the start of each semester. The transcript, or other official document issued by the institution, must indicate the courses the child has enrolled in and completed for each term. The document must also show the grades and the number of credits the child received for each course. In addition, it must reflect the courses and corresponding credit hours the child has enrolled in for the upcoming semester.

In addition to enrolling in the required number of credit hours, the child must also receive grades that allow the child to remain enrolled at the institution. Failing grades in half or more than half of the child’s courses for any given semester may terminate the payment of child support.

The child is also responsible for providing the noncustodial parent, upon request, with a copy of his or her grades. Such documentation must be provided within thirty days of receipt of grades from the institution. Child support payments may terminate if the child fails to produce the documents in the allotted time.

If circumstances prevent the child from enrolling in twelve credit hours a semester, the requirement may be lessened. A minimum of nine credit hours each semester is required if the child remains employed for fifteen or more hours a week during the course of the semester. A child with a diagnosed developmental disability or health problem that impacts the number of credit hours the child can carry will remain eligible for child support as long as he or she meets all of the other requirements.

Provided the above requirements are met, a parent’s child support obligation shall continue until the child completes his or her education or turns twenty-one years old, whichever happens first. During this time, either the obligated parent or the child can petition the court to amend the order and instruct the obligated parent to make the child support payments directly to the child.


Contributions by Kelly Thompson, Law Clerk

Child Orders of Protection: A Brief Overview

Orders of protection are available to children as well as adults. In Missouri, child orders of protection are governed by the Missouri Revised Statutes §§ 455.500 - 455.538. These statutory sections are known as the Child Protection Orders Act.

When is a child order of protection available?
An order of protection may be sought on behalf of a child in situations where the child has been a victim of domestic violence by a former or current household member or any person stalking the child. Domestic violence itself is broadly defined by statute as abuse or stalking. Abuse generally encompasses, but is not limited to, assault, battery, coercion, harassment, sexual assault, and unlawful imprisonment. Child discipline, such as spanking, does not constitute abuse as long as it is performed in a reasonable manner. Stalking occurs when a person intentionally engages in a pattern of conduct that serves no legitimate purpose, causes fear of physical harm, and is repeated over time.

Who can file?
A verified petition for a child order of protection may be filed by a parent or guardian of the child, the juvenile officer, or guardian ad litem or court-appointed special advocate that has been appointed for the child.

The petition may be filed in the county where the child resides, where the respondent may be served, or where the alleged abuse took place. Orders of protection are designed for immediate access and are generally pro se friendly. Court clerks are available to explain the filing procedures and provide the necessary forms to petitioners who are not represented by counsel. There are no filing fees for child orders of protection.

What happens next?
Once a verified petition has been filed, a guardian ad litem or court-appointed special advocate will be appointed for the child. A hearing will be set for no later than fifteen days after the filing of the petition. To provide relief for the time that elapses prior to the hearing, the court may issue an ex parte order.

Ex Parte Orders
Ex parte orders essentially provide temporary relief. Upon the filing of a verified petition, an ex parte will only be issued upon a finding that there are no prior or pending orders of custody, and that the respondent is not younger than seventeen years old. If the petition shows good cause, the court can immediately issue an ex parte order of protection. Good cause may be shown by an immediate and present danger of abuse to the child. A respondent does not need to receive notice or have an opportunity to be heard for an ex parte order to be issued.

Intended to protect the child victim, ex parte orders can include terms that the court deems necessary to ensure the child’s safety. An order can restrain the respondent from disturbing the peace of the child, communicating with the child, and abusing or threatening the child. An order can also exclude the respondent the family home or household if the court finds that it is in the best interest of the children remaining in the home, that there is a substantial risk of domestic violence unless the respondent is excluded, and that a remaining adult household member is able to care for the children in the respondent’s absence. An ex parte order can also include a temporary custody order.

An ex parte order remains in effect until the time of the hearing. At the hearing, the court may grant a full order or protection.

Full Orders of Protection
Unlike ex parte orders, full orders of protection are issued after the respondent has received notice of the hearing and had an opportunity to be heard. Personal service upon the respondent is required at least three days before the hearing for the issuance of a full order of protection.

At the hearing, a full order may be granted by the court if the petitioner proves the allegations by a preponderance of the evidence. Full orders of protection can temporarily enjoin the respondent from engaging in same actions and manners as ex parte orders. Upon issuing a full order of protection, the court can also award custody, visitation, child support, and maintenance, all subject to certain conditions. In addition, the court can order the respondent to participate in counseling, pay the cost of any treatment, make rent or mortgage payments, or pay fees for housing and other services that are provided to the child by a shelter for domestic violence victims.

Full orders of protection remain in effect for at least 180 days, but not for longer than one year. The order may be renewed upon another hearing. A finding of a subsequent or new act of abuse toward the child is not necessary for the renewal of a protection order.

For more information on this matter, contact the Kansas City Attorneys of Heartland Law.

Custody of Minor Children—What is “Best Interest?”

To make an initial custody decision, a Missouri court has the duty to examine eight various factors in order to make a best interest determination. Where the child wishes to reside is one of them, but not necessarily the determining factor. The court must also look at:

The wishes of the child's parents as to custody and the proposed parenting plan submitted by both parties;

If one of the parents fails to participate in a cause of action, his or her ability to present a case is adversely affected. There are occasions when custody is determined in favor of the party who has filed, primarily due to the second party failing to file an answer and participate in the outcome. 

The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;

The Missouri legislature has expressed a clear preference for joint custody if possible. It is accepted as true that a child needs both a mother and a father for optimal maturation. However, if one parent is hampered by addictions, absence, abusive behaviors or illness, the other parent could be found to be a more able and willing parent. 

The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child's best interests;

How does everybody interact and deal with one another? If there are significant issues, the court will consider those.

Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;

Action by a parent that interferes with the ability of the other parent to have a relationship with the child will adversely impact their custody. Examples are refusing to call the child to the phone, refusing to keep each other advised as to significant events, refusing to schedule parenting time with the other parent.

The child's adjustment to the child's home, school, and community;

If a child is having significant adjustment challenges in a particular home, school or community, a more nurturing environment might be indicated. Issues with step-parents, inappropriate discipline, cult membership, lack of educational opportunity, etc. will be considered. One parent being more financially able than another will not be determinative by itself.

The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. If the court finds that a pattern of domestic violence as defined in section 455.010 has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and any other child or children for whom the parent has custodial or visitation rights, and the parent or other family or household member who is the victim of domestic violence from any further harm;

If a court finds there has been abuse but there is little alternative but to maintain custody with the abusive parent, special findings of fact must be made and written into the final judgment.

The intention of either parent to relocate the principal residence of the child; and

Once the case has been filed, it is against the law for a parent to unilaterally move the child out of the jurisdiction. All such moves will have to be approved by the court in order to be legal.

The wishes of a child as to the child's custodian. The fact that a parent sends his or her child or children to a home school, as defined in section 167.031, shall not be the sole factor that a court considers in determining custody of such child or children.

When children reach the teenage years, they often suddenly express a desire to switch households. Cases require careful analysis, as the Disney parent might seem attractive in the eyes of the minor child.

Once the court has looked at all these factors, the best interest of the child can be determined.

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.

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 www.heartlandlawyer.com

A Kansas City Law Firm with True Heart

Let Heartland Help.

Most people don't think of law as a "helping" profession. But we're not your typical lawyers. We are a Midwestern firm, combining the personal attention of small-town lawyers with the professionalism and expertise of a big-city office. Our Kansas City attorneys go beyond first-rate counsel to provide true service and compassion.

Take a look through our menu of services. If you don't see what you're looking for, get in touch with us to discuss other services we provide. And as always, your first consultation is free.