Archive for the ‘Divorce’ Category
by Tom Hogan
Section 523(a)(5) of the Bankruptcy Code now makes all support obligations non-dischargeable (the debt cannot be eliminated). In addition, all property settlement debts that are owed to a spouse, former spouse, or a child of the debtor are non-dischargeable in a Chapter 7 bankruptcy. Therefore, a non-debtor spouse is no longer technically required to file an adversary complaint to block a debtor spouse from trying to bankrupt debt that is owed under a property settlement agreement. However, it is my professional opinion that a prudent non-debtor spouse should still file an adversary complaint. A non-debtor spouse should make certain that a debtor ex-spouse is not successful in his or her efforts in trying to discharge marital debts that are owed under a property settlement agreement. Due caution should be exercised until the bankruptcy laws on these issues are settled.
We have represented clients for the past 30 years experience in helping them navigate through their divorce decree and bankruptcy cases. We are well versed in helping you to maximize your bankruptcy protections and to keep your personal assets. Our bankruptcy attorneys look forward to helping you get a fresh start.
Call (209) 214-6600 to speak with an Attorney today!
by Tom Hogan
Any support, whether it is called family support, alimony, or child support, is made non-dischargeable (the debt can’t be eliminated) in bankruptcy by the Bankruptcy Code. The spouse who receives the support does not have to file any type of proofs of claims or objections to the Bankruptcy Court to enforce her rights to continue to receive support. In most cases, once a debtor files for bankruptcy, all creditors must stop all actions to collect their debts. This block is called an “automatic stay”. The automatic stay does not apply to the enforcement of the collection of child support or alimony. These types of obligations have a super priority under the Bankruptcy Code.
The attorneys of The Law Office of Thomas Hogan specialize in bankruptcy & divorce. Call (209) 214-6600 to speak with our Modesto Bankruptcy Attorneys.
by Tom Hogan
Divorce can be a war of attrition. The family court often requires the husband to pay the wife’s counsel fees, which could be $10,000 or higher. This can definitely take a toll on someone’s morale and pocket.
It’s common to hear about ex-husbands filing for bankruptcy after a divorce is over, and often the husband will list the wife’s lawyer fees as a debt on his bankruptcy schedules. Consequently, lawyer’s fees as a dis-chargeable debt in bankruptcy become a big issue. The key question is whether the counsel fee debt is declared as a support obligation or property settlement claim.
The California Bankruptcy Court recently declared obligation to pay spousal support and attorney fees as non-dischargeable pursuant to 11 U.S.C. §523(a)(5). Van Aken v. Van Aken, 2005 Fed. App.0001 (6th Cir. 2005).
If an ex-husband attempts to discharge a counsel fee award, it is imperative that the wife files an adversary proceeding with the Bankruptcy Court. This request calls for a Court hearing over the dispute, and the Court decides whether the counsel fee award is support and non-dischargeable. Likewise, the Bankruptcy Court could determine the counsel fee award was a form of equitable distribution that can be discharged. The Court could also order the payment terms be restructured. It is important to note that if a non-debtor spouse ignores a spouse’s bankruptcy filing, disastrous results could ensure. No objection typically means the debtor spouse will successfully discharge a counsel fee obligation. Call us for help with bankruptcy after divorce.
by Tom Hogan
Once a divorce is filed, there are growing fears that the family will fall apart. It is a sad reality that many families simply can’t pay for the mortgage or other major expenses when they split up. Filing a Chapter 13 bankruptcy stops the foreclosure, and enables the family to propose a debt restructuring plan and a payment plan on the mortgage rearrangements. At the very least, a Chapter 13 bankruptcy will buy the family time to find a decent apartment within their means.
Alternatively, a Chapter 13 bankruptcy could give a family some time to put their home on the real estate market. A family receives the except equity in their home if it’s sold at a sheriff’s sale, but only after the sheriff’s fees, bank’s lawyer fees, and the mortgage are fully paid off. It is always recommended that an financially constrained family sells their home in a “distress sale” rather than loses it in a sheriffs’ sale.
Thomas Hogan’s Law Office specializes in bankruptcy & divorce and we are prepared to help help you. Call (209) 214-6600 to speak with our Modesto Divorce Attorneys.
by Tom Hogan
Section 523(a)(5) of the Bankruptcy Code now makes all support obligations non-dischargeable in all chapters. In addition, all property settlement debts owed to a spouse, former spouse, or a debtor’s child are non-dischargeable in a Chapter 7. Therefore, a non-debtor spouse is no longer technically required to file an adversary complaint to block a debtor spouse from trying to bankrupt debt owed under a property settlement agreement. However, it still makes sense for a non-debtor spouse to file an adversary complaint. A non-debtor spouse should be completely certain that the debtor ex-spouse does not discharge marital debts owed under the agreement. Due caution should be exercised until the bankruptcy laws on these issues are settled. The ability to pay and the balancing tests have been eliminated from Section 523(a)(15) of the Bankruptcy Code, and Section 523(c) of the Code was amended so a property settlement discharge proceeding is no longer required to be brought into the bankruptcy court. It is important to emphasize that these types of debts still remain dischargeable in a Chapter 13 case. Therefore, most future bankruptcy litigation over family law debts will be contested in a Chapter 13 case rather than a Chapter 7 Case.
The Law Office of Thomas Hogan is a bankruptcy & divorce law specialist who is prepared to help help you. Call (209) 214-6600 to speak with our Modesto Divorce Attorneys.
by Tom Hogan
Living in California is expensive, and divorce can be even more so when bankruptcy is involved. A divorce can trigger a bankruptcy filing for a multitude of reasons, and it quite often turns into a supreme mess. There is no clear winner ad loser in a divorce case, so all parties should try to achieve a compromise and reach a fair property settlement agreement. In many cases, a bankruptcy can help out both spouses if they joint file.
If an ex-spouse files for bankruptcy, the family court can still hear testimony and decided issues relating to support. However, the court requires stay relief for equitable distribution, which involves the bankruptcy court permitting the divorce case to continue. Basically, the family court won’t split up the family home, divide pensions, or apportion any stocks or mutual funds until it receives permission from the bankruptcy court.
by Tom Hogan
Spouses who are seeking spousal support as well as spouses who become obligated to pay support, must keep in mind issues of domestic violence (ie any history of domestic violence between the parties or against either party’s child) is a factor under Family Code 4320 in determining spousal support.
Under Family Code 4320 a court must consider a variety of specified circumstances in making an order for spousal support. Among these is documented evidence of any history of domestic violence, as defined in Family Code 6211, between the parties or perpetrated by either party against either party’s child.
Under new legislation, even if one pleas out as “no contest”, this is considered and included as documented evidence of domestic violence.
The Law Office of Thomas Hogan in Modesto CA is here to help. Feel free to contact us if you are considering a divorce from your spouse or legal separation. Thomas P. Hogan is a Family Law Specialist in Modesto California, don’t settle for anyone when determining your rights. Call (209) 214-6600.
by Tom Hogan
We get many calls about annulment of a marriage. There has been fairly recent case authority on this matter in Ceja V Rudolph & Sletten, Inc (2013) 56 C4th 1113. So if you want to annul your marriage only the party who believed in good faith that the marriage was valid will be declared a putative spouse, where the court will divide property only on the request of a party who the court has deemed is a putative spouse. On what constitutes a good faith belief in the validity of the marriage, one must present evidence under the subjective standard (ie duration of marriage; children; sharing property and accounts; public communication of marital status; wages of each party used for the benefit of the community).
by Tom Hogan
Restraining Orders are so common that when one is served a restraining order by their spouse, the other spouse wants to file one against the protected party (ie mutual restraining orders) as well. While this may be a knee jerk reaction, the legislature has clarified what conditions must be met before a court will grant a mutual restraining order.
Family Code 6305 provides that each party must present written evidence of abuse or domestic violence in an application for relief using judicial council forms, and that a responsive pleading to the initial restraining order does not satisfy the party’s obligation to present written evidence of abuse or domestic violence in an affirmative pleading.
So the take away is, if you want a mutual restraining order and have been served with one, you must take proactive steps using the proper forms, and can not just ask for one in responsive pleadings to what has been served.
The Law Office of Thomas Hogan is here to help. Feel free to contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding domestic violence restraining orders. Thomas P. Hogan is a Family Law Specialist in Stanislaus County who is also a licensed Certified Public Accountant (CPA). Don’t settle for less when determining your rights. Call (209) 214-6600 in Modesto California.
by Chris Dietrich
What is a right of first refusal for childcare?
A right of first refusal, also called a right of first option for child care, is a general term for a child custody order provision which provides that if the custodial parent is unable to be with the child during their scheduled time (be it for work, school, or other engagements) that the other parent is given the option to watch the child before non-parties (like babysitters, nannies, or daycare providers) are called in. The idea behind these types of provisions is that it is best for the child’s development to be with parents to the maximum extent possible.
The devil in the details of right of first refusal orders
As stated above, the term “right of first refusal” is a general term describing a type of order. Without specific language regarding the purpose, intention, and limitations of how a right of first refusal should operate, an agreement that the parties “have a right of first refusal” isn’t worth the paper it’s printed on.
- How frequently are situations where a right of first refusal may apply going to come up? If a schedule provides one parent with time which they are consistently unable to exercise it may be necessary to consider revising the general parenting schedule to establish a more stable routine.
- Is work related childcare included in the right of first refusal? A common reason that one may use childcare is so that they can go to work. Some parties expressly exclude work related childcare from the right of first refusal so that the child can have a more consistent routine, while others want to include work related childcare needs in a right of first refusal to maximize the time the child is with a parent. It is important to address this particular need in crafting a right of first refusal.
- What minimum amount of time should the custodial parent be unavailable before a right of first refusal kicks in? Viewed legalistically, a general right of first refusal without specific limitations could require one parent to call the other if they have to have someone watch the child for a quick shopping trip, requiring the parties to spend more time coordinating logistics than the amount of time the custodial parent is going to be away. To avoid such an absurd result the language of a right of first refusal order only comes in to play if the custodial parent has to be away for several hours or more. The minimum amount of time which is appropriate varies on each individual family and their needs.
- What about time with extended family? Even if a parent is unavailable during their parenting time there are a variety of good reasons they may want to have the child spend time with extended family members. Read legalistically, a right of first refusal could be read to bar this time with extended family unless the custodial parent is present. It’s a good idea to discuss this issue and determine what exceptions like this may apply to a right of first refusal.
The right of first refusal is such a common part of California child custody orders that the California Judicial Council added form language to an optional child custody order attachment for the courts and family law litigants to use to create a right of first refusal for childcare. The form language reads as follows:
“Right of first option of child care. In the event either parent requires child care for (specify number) ______ hours or more while the children are in his or her custody, the other parent must be given first opportunity, with as much prior notice as possible, to care for the children before other arrangements are made. Unless specifically agreed or ordered by the court, this order does not include regular child care needed when a parent is working.” – FL 341(D) – Optional Additional Provisions – Physical Custody Attachment
While the judicial council form language is good and will work for many parents, it is important to ensure that the considerations above are addressed so that a right of first refusal is right for you and your unique needs.
Who is a right of first refusal good for?
Whether a right of first refusal makes sense for you depends on many factors. My experience working with a variety of families shows that generally a right of first refusal can be successful in the following situations.
- If the parents have a good communication skills with each other. The implementation of a right of first refusal requires regular civil communication between parents. Of course, good communication skills do not happen by accident and can be learned, giving such an order a greater chance of success, but this order should not used for parents who are constantly arguing.
- If one (or both) parent(s) have variable schedules. If work, school, or other constraints require one or both of the parents to be unavailable for chunks of their parenting time, making it impossible to set an exact workable schedule, a right of first refusal may be the best solution to that problem.
- Parents who work together with flexibility and cooperation. Like many other parenting issues, being flexible and cooperative with the other parent is good for the productivity of the co-parenting relationship and is good for the children involved. Parents who do this well in practice (but who may need a little help establishing general guidelines on how to do so) can often benefit from a right of first refusal.
Who is a right of first refusal not good for?
Experience also shows that there are some for which a right of first refusal would not be a good idea and may even make a difficult situation worse.
- If there is a history of domestic violence between the parties (whether or not a restraining order is in effect) a right of first refusal may cause more harm than good as it requires a high level of communication with the other parent.
- If one parent’s time is limited to supervised visitation a right of first refusal would not be consistent with the child’s best interests.
- If the parents do not communicate well a right of first refusal will likely not operate well in practice.
- If one or both parents are inclined to legalistic behaviors and interpretations of court orders regardless of how that impacts the children, such an order may lead to disputes.
- If the parents do not live close to each other, for practical reasons.
For assistance in determining whether a right of first refusal is workable for you and your needs please contact our office to schedule a consultation with one of our experienced child custody attorneys.