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.

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.

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

Step Parent Adoption

When a step parent by marriage seeks to legally adopt the child or children of his/her spouse, it is commonly referred to as a “step parent adoption.”

In Missouri, the step-parent and the legal/biological parent may jointly petition the local Family Court for an Order of Adoption. The second biological/legal parent, if living, could execute a verified Consent to Adoption. The Consent to Adoption will be filed along with the Petition and if accepted by the Court, will terminate that parents’ rights to and over the child and end any legal support or other obligations as well.

When the parties petition jointly the Court may waive the home study.

If the second parent cannot be located, the Petition might include language to establish neglect and abandonment of the child, which if proved, could be the basis to terminate that parents’ rights to and over the child. (However, should the second parent oppose the adoption, the adoption will likely be impossible.)

Adopting creates legal rights and obligations to the child. The child will become a legal heir, and the adoptive parent will have obligations to provide financial and emotional support to the child. One adoptive father says, “He was already mine. It was just a matter of paper work.”

For more information on the process contact your Attorney Charice Holtsclaw at Heartland Law at 816-842-6700. Your first consultation is always free.

How To Deal With Joint Tax Liability In Your Divorce

Divorce may legally dissolve a union but it does not dissolve the tax liability the former couple shared. The adage, “[i]n this world there is nothing that is certain except death and taxes,” absolutely holds true in this instance. By taking an active role in the way your divorce decree is written and by familiarizing yourself with the terms in it, you will better understand your tax implications. 

If on the last day of the tax year you were legally married, you are able to file jointly. Most people choose this option if it’s available to them because it typically results in the lowest tax burden. However, be aware that filing jointly means that you are both fully liable for the contents of the tax filing. The option of the “married filing separately” status is also available. Prior to filing, both parties have to determine how these filing statuses will affect their tax liabilities and benefits. 

If you were legally divorced by the end of the tax year, you may be able to file as a single individual or as a head of household. Filing as a head of household can be more beneficial tax-wise, but you must meet certain conditions. In order to qualify, you must have paid at least half of the cost of maintaining a home and must have lived in the home with a qualifying dependent for over half the year. 

These are simply two possibilities. Unfortunately, situations during the divorce don’t always have the most pleasant outcome, and you may be stuck footing the bill. Even if you, as a former spouse, did not generate any of the income or deductions on the return, you could be held responsible to pay all of the taxes simply because you signed the return. 

The IRS can provide some solace in the form of the innocent spouse relief. By evoking this, you can be relieved of responsibility for paying the tax debts if your former spouse omitted or improperly reported items on your tax return. However, if you are jointly and individually responsible for the tax debt, that does not qualify for relief.  This might be a result of a joint return you both signed and filed while married. The IRS is able to collect that debt from either you or your former spouse. Contact your attorney at Heartland Law or a tax professional for more information on your options. Call (816) 842-6700 or Email us by clicking on the link.  

Tax Dischargeability in Bankruptcy

If you have an income tax debt, and are filing for bankruptcy, it may be eligible for discharge under Chapter 7 or Chapter 13 of the Bankruptcy Code. 

The difference between a Chapter 7 bankruptcy and a Chapter 13 bankruptcy is that Chapter 7 allows for a full discharge of permitted debts while Chapter 13 issues a payment plan to repay some debts, with the rest of the permitted debts being discharged. Keep in mind, not all tax debts are able to be discharged in bankruptcy, but taxes that are eligible to be discharged in a Chapter 7 are also eligible for discharge in Chapter 13. When you file for bankruptcy, your tax debts must meet a certain criteria in order to be discharged. 

The criteria are:

• All tax debt must be from income taxes

• The tax debt must be part of a tax return that was due at least three years prior to the taxpayer filing for bankruptcy. The due date includes any extensions.  

• The tax return has to have been filed at least two before the taxpayer files for bankruptcy. This date starts when the return was actually filed.

• The tax assessment that the IRS sent you has to be at least 240 days old.

• The tax return cannot be fraudulent.

• The taxpayer cannot be guilty of tax evasion.

• You must also prove to the court that you filed tax returns for the past four years. 

Some of the tax debts that are not dischargeable are those that have not been filed. While the IRS routinely assesses taxes on unfiled returns, these tax liabilities cannot be discharged until the taxpayer files a return for the year in question. 

If you file for Chapter 13 bankruptcy, money owed to the IRS that does not meet the qualifications to be discharged can be repaid through a payment plan that lasts anywhere between three and five years without interest or penalties. One of the benefits of filing a Chapter 13 bankruptcy is if the IRS rejected your previous payment plan, this is a way to get them to accept one.

It is recommended that you speak with your attorney regarding this matter before deciding between filing Chapter 7 or Chapter 13 to get rid of or aid with the burden of tax debt.

The Uniform Child-Custody Jurisdiction and Enforcement Act

The Uniform Child-Custody Jurisdiction and Enforcement Act, aka the UCCJEA, is a law born out of necessity. Divorce is a trying and oft times complicated experience for anyone to go through. And today, the divorce rate is at an all time high. But what happens when there are children involved? In today's global society, we are a much more nomadic species than ever. Making it all the more difficult to divvy up custody rights if one of the parents decides to move out of state, or even out of the country. Which jurisdiction presides over the case? Child custody laws can vary from county to county within a single state. Which is why the UCCJEA has been so helpful in enforcing a singular protocol. The UCCJEA is merely a more specified and clarified version of its predecessor; UCCJA. As a result, conflicts have been greatly reduced nationwide in child custody cases. It is intended to reflect the Federal Parental Kidnapping Act (PKPA) which ensures interstate uniformity with regards to custody, and provides protection for victims of domestic violence who have relocated out of state for their own safety.

Locally, the state of Missouri adopted the act in August of 2009. Replacing the previous UCCJA as discussed above. Missouri was one of the last three states to employ the act. Since then, many have found their custody situation improved as have Parental Kidnapping issues have decreased.

A court being asked to exercise jurisdiction over a child will look for the following jurisdictional indicators:

• Child’s home state on the date of the commencement of the proceeding, 
• Child’s home state within six months prior to the commencement of the proceeding although the child is absent from this state, a parent or person acting as a parent continues to live in this state;
• The child and his parent have a significant connection with this state other than mere physical presence; and
• Substantial evidence is available in this state concerning the child's care, protection, training and personal relationships.

In the event two states qualify and cases are filed in both, the Courts will confer with each other directly and make a decision as to jurisdiction.  A court which has decided custody previously will exercise continuing jurisdiction over the case.

To illustrate:

A custody order is put in place in Topeka, Kansas regarding a child who is 6 years old, has lived in Topeka since birth with his mother and attended day care and school there, and sees the pediatrician there.  His mother rents a home there and she grew up there too and attended high school there.   Shortly after the custody order is put in place, mother is offered a job in Columbia, Missouri.  She moves to Columbia to pursue the job and brings the child along with her.

Father, a resident of Topeka, not happy about the disruption to his ability to visit, files an action in Topeka, KS court to enforce his visitation 3 months later.  Under the UCJJEA, the Topeka court has jurisdiction.

However, if Father waits 7 months before he files in Topeka, KS to enforce his visitation things are different.  Mother first files in Columbia, MO to change the parenting plan and serves Father with summons to the Missouri Court.  Father’s attorney contests jurisdiction of the Missouri court based on the continuing jurisdiction of the Kansas court.  The two judges get on the phone to sort things out.  After they conference on the phone with each other, the Kansas Court transfers jurisdiction of the case to the Missouri court because the significant contacts and residence and passage of time indicate the Missouri court is now the court with jurisdiction of the case.