Archive for the ‘Family Law’ Category

Bankruptcy for Creditors 101

Tuesday, May 30th, 2017

By: Sarah Saville

Ever loaned money to a friend? Are you a landlord or have a roommate? Does someone pay you child or spousal support payments? You may not think of yourself as a “creditor”, but if the person who owes you money files bankruptcy, you will be a creditor in bankruptcy.  Here’s 3 things to know when that person files bankruptcy:

 

  • STOP in the Name of the Automatic Stay!

The moment a person files bankruptcy, an automatic stay is issued and all collections activities must come to a screeching halt.  That means no phone calls, no notices, no court actions, no texts or tweets or communications of any kind to the debtor about any contract or debt owed before the bankruptcy was filed. Although the stay has limitations, violating the stay is a punishable offense, so it’s best to consult with an attorney before taking any action.

 

  • Know the Chapter

The most common bankruptcy is Chapter 7, in which the debtor’s non-exempt assets – if any – will be paid to their creditors.  In a Chapter 13, the debtor makes monthly payments under a 3-5 year plan.  In all Chapter 13 and Chapter 7 – Asset bankruptcies, creditors must file a proof of claim to be paid through the bankruptcy.  Mark the claim deadline on your calendar as soon as you learn there’s a bankruptcy so that you don’t miss it!

 

  • Know the Debt

Is your debt secured? Are there monthly payments that will accrue after the petition is filed? Can the debt be discharged? These factors will determine your rights as a creditor. If your debt is secured, your lien may survive the bankruptcy.  If a debtor fails to make ongoing monthly payments, the court may give you relief from stay to collect the debt.  Some debt may not be discharged in a bankruptcy.  That means you will be allowed to pursue the debt after the bankruptcy is over.  Understanding how the bankruptcy will affect your debt can help you plan for protecting your rights as a creditor.

Stop in the name of bankruptcy graphic

 

DIY Separation Agreement: Don’t Let Your Divorce Become a Pinterest Fail

Thursday, March 23rd, 2017

DIY Divorce graphic

By: Shannon Forrest

Often when someone comes in to discuss a divorce, he or she will want to say that the divorce is “uncontested”.  It is no secret that an uncontested divorce costs a great deal less than a contested divorce.

Unfortunately, to have an “uncontested” divorce, you and your spouse must be in agreement as to all the divorce issues: fault grounds, spousal support, equitable distribution and the child issues of custody, visitation and child support.  If you and your spouse disagree about any one of these items, you do not have an uncontested divorce… yet.

To facilitate an uncontested divorce, where you and your spouse can come to an agreement, I usually recommend that you and your spouse negotiate and sign a separation agreement, specifically one drafted by an attorney.  Why an attorney?  In truth, if you and your spouse were to agree upon terms, written on a napkin, and sign the napkin, that would be a legally-binding document.  It may be hard to enforce in Court, though.

Additionally, what you may be agreeing to, and signing may be two different things.  For example, you or your spouse may agree that “wife can have the house”.  In husband’s mind, this may mean that wife pays the mortgage; in wife’s mind it may mean she “gets” the house after the husband pays the mortgage.  Without further clarification, “wife can have the house” does not say who will pay the mortgage, at all, so you are left without an agreement as to that point.  Another way this happens is when you agree to a legal term, and you don’t know what it means.  This most often happens when a couple agrees to “joint legal custody”.  What if “joint legal custody” means something other than what you thought you and the other parent were agreeing to?

Finally, an attorney can put into an agreement protections that might not have been there otherwise.  For example, how do you and your spouse go about modifying your agreement should circumstances change?  There’s a provision for that.  What if one of you drafted it and the other one felt pressured to sign it?  There’s a provision for that.  What if it was written in Virginia but you both live in different states now?  There’s a provision for that.  I am not suggesting that attorneys are not human, but many of the provisions you and your spouse may leave out come standard in attorney-drafted documents.

In sum, do not allow your divorce to become a Pinterest fail by drafting your own separation agreement, on a napkin or otherwise.  Hire a professional so that you know you are protected and that what you agreed to will become the basis for your divorce.

Will I have to pay child support?

Sunday, February 21st, 2016

If you are the legal parent of a child, then the Commonwealth of Virginia says that you have an obligation to provide support for that child.  There are actual numbers in the Code of Virginia that show the total gross family income and the amount of support that the legislature has determined is necessary for the support of up to 6 children.

Once you have that base number, that number can be increased by any work-related child care and any health insurance for the child.  This will give you the total amount of support that should be provided for that child.

In the case where one parent has the child the majority of the time and the other parent has the child for less than 90 24-hour periods, the total child support obligation is multiplied by his or her percentage of the total family income and the non-custodial parent will pay his or her percentage to the custodial parent.  For example, if the custodial parent earns 40% of the income and the non-custodial parent earns 60% of the income, then the non-custodial parent will pay 60% of the total child support obligation to the custodial parent.

In the case where the non-custodial parent has the child for more than 90 24-hour periods, there is another calculation where the amount of time the child spends with each parent is taken into account.   The first step in this process multiplies the total child support obligation by 1.4.  This higher number is then multiplied by the time each parent has the child and then multiplied by the percentage of income for each parent.  This determines the total amount of child support for each parent and the difference between the two is the amount of child support that is paid by one parent to the other.

The calculation formulas are in the code, but most people use a calculation spreadsheet formula provided by a software vendor.  Most attorneys, the courts, and the Department of Social Services, Division of Child Support Enforcement (DCSE) all use these same software vendors.  There is also an online provider at www.SupportSolver.com that can be used for your own calculations, although the Courts or DCSE will use their own software for the actual numbers to be in the order.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

Do Dads ever get custody?

Friday, January 15th, 2016

The short answer is ‘yes’, Dads often get legal and/or physical custody of their children!

In Virginia, the courts use what is called a ‘best interest of the child’ standard when deciding child custody matters.  The factors are found in Virginia Code Section 20-124.3 and these are the things that any Judge, either in the Juvenile and Domestic Relations (JDR) District Court or the Circuit Court must consider before making a child custody decision.

If the child is very young, and the mother is breast feeding the child, that would make it much more difficult for a father to get custody at that time, but other than that, there is no presumption that a mother is the preferred parent.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

When can I file for custody of my baby?

Saturday, January 9th, 2016

I’ve had two different people come  into my office in the past month who want to establish custody for their unborn children.  The problem is that custody cannot be established until the child is born and becomes an independent person.

You can do a lot to get ready.  You will need the name, physical and mailing address, and phone number of the other parent so that they can be properly and legally served with any custody papers after the birth of your child.

In most jurisdictions in Virginia, the initial custody determination filing requires a small filing fee (I think it was $25 the last time I checked locally).  Also, check with your Juvenile and Domestic Relations District Court Clerk’s office.  In some areas, the petition is filed in the clerk’s office and in other areas the initial petition is prepared in a Court Services office.  Some of the Court Services offices are in the courthouse and sometimes they are in a different building.

The timeframe for the initial appearance in court will depend on the jurisdiction and the court calendar, but count on it being at least a month before the initial hearing.  Then, if mom and dad are in agreement about custody, the court can usually enter an order that day.  If the matter is contested, you will be scheduled for a contested hearing and that may be 1-3 months out depending again on the court’s calendar.

Until the child is born, the most important thing you can do is to take good care of yourself and make sure that the child has every opportunity to be born safe and healthy.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.