Can a spouse escape support or alimony via bankruptcy?

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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.

I Was Ordered to Pay for My Wife’s Lawyer Fees. Can I Wipe Them Out if I File for Bankruptcy?

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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.

If I File for Bankruptcy, Will It Impact My IRA account, My Spouse’s IRA Cash Value Life Insurance Accounts, or Jointly-Owned Land?

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In general, filing for bankruptcy will not affect your spouse’s property. In a Chapter 7 bankruptcy, the Trustee will be able to take your owned property if it is not exempt. The Trustee can’t take your spouse’s property.

The answer is a little more complicated when jointly-owned property comes into play. The Trustee can take only your portion of the property or all of it depending on the nature of your ownership. Selling the jointly-owned property may be required to divide it between the joint owner and the Trustee.

You should be able to keep your SEP, IRA and 401(k) plans. In many states, IRAs are exempt, save for deposits made within six months before filing. EISA plans are also protected if their documentation contains spendthrift protection.

In California, a life insurance’s cash value exemption is capped at a certain amount, provided you meet the property beneficiaries and meet other requirements. Call the professionals at (209) 214-6600 to help you in your time of need.

We are in the Middle of a Divorce and I was just Served with Foreclosure Papers. What Should I Do?

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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.

If My Husband Files for Bankruptcy Can I Still Enforce the Terms of the Divorce Judgment?

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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.

My Spouse has Just Filed for Bankruptcy in the Middle of Our Divorce Case. What Do I Do Now?

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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.

Can Breathalyzer Results Be Trusted

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A breathalyzer test is sometimes used by police to confirm whether or not an individual was driving under the influence of alcohol. The results are often used as evidence at a DUI trial. However, many people question how reliable these tests really are.

A breathalyzer measures and detects molecules in breath alcohol, which is a vapor that escapes the body through breath after a person consumes alcohol. As with any test, there are factors that make it susceptible to error.

  • All breathalyzers have a margin of error. For example, a machine may measure breath alcohol at .08% but the actual percentage could be anywhere from .07% to .09%.
  • Instead of measuring blood alcohol concentration (BAC) directly, breathalyzers estimate BAC by breath alcohol levels, which can result in an incorrect result.
  • Radio frequency interference (RFI) from a police radio can also cause a breathalyzer to perform erroneously.
  • In order for a breathalyzer device to function properly, it must be calibrated regularly.
  • Mouth-alcohol contamination is also something to be considered. For instance, if a person burps or vomits shortly before testing, the breathalyzer might detect alcohol that is lingering in the mouth or stomach in addition to breath alcohol.
  • It is also possible for a test to be contaminated with the mouth-alcohol from a prior subject or atmospheric fumes.

The Law Office of Thomas Hogan is a DUI/DWI Law Specialist who is prepared to help in your time of need. Feel free to contact us if you are in need of help. Call (209) 214-6600 to speak with our Modesto California Attorneys.

Marriage vs. Domestic Partnership

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Although a registered domestic partnership (RDP) in California grants both parties all the rights, benefits and obligations as parties in a valid marriage, there are still many differences. For example, federal law and many other states do not acknowledge domestic partnerships. Consequently, what are the disadvantages in choosing a domestic partnership over marriage?

  • Because RDPs are not federally recognized, they are unable to take advantage of over 1130 rights and benefits afforded exclusively to married couples.
  • RDPs are frequently looked down upon and do not receive the same honor, respect and privileges as married couples.
  • In an emergency, RDPs may not be permitted to make important medical decisions for their incapable partners.
  • Since the federal government does not recognize RDPs, they would not be provided the same tax benefits as legally married couples.
  • A court order regarding support for a current/former domestic partner is not recognized federally like one for a current/former marriage mate is.

The Law Office of Thomas Hogan is a family law specialist who is prepared to help in your time of need. Feel free to contact us if you are in need of help. Call (209) 214-6600 to speak with our Modesto California Attorneys.

How the IRS Taxes Cannabis Businesses

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Cannabis is now legal for medical use in 26 states and recreational use in eight. In 1991, 78% of Americans opposed marijuana legalization. A national poll conducted in February 2017 by Quinnipiac University finds 59 percent of adults surveyed favored the legalization of marijuana use in the United States, and 93 percent supported allowing adults to legally use medical marijuana if their doctor prescribes it. This support is growing yearly, even monthly. The marijuana industry seems to be booming, but business owners may disagree. Even if state law permits sale, federal law does not. However, I.R.C. §61(a) does not differentiate between income from legal sources and income from illegal sources. Therefore, marijuana businesses are still required to pay federal income tax on taxable income.

Although I.R.C. §162 allows businesses to deduct ordinary and necessary expenses such as wages, rent, supplies, etc., businesses trafficking marijuana are excluded due to I.R.C. §280E. This code states that no deduction or credit shall be allowed for any amount paid or incurred during the taxable year in carrying on any trade or business if such trade or business consists of trafficking in controlled substances. Marijuana used for any purpose is a controlled substance. Therefore, marijuana businesses are required to report all income while, at the same time, restricted to deduct the aforementioned ordinary and necessary expenses.

One provision available for marijuana businesses is to deduct cost of goods sold (COGS). These are costs directly related to the production of goods. This would include the cost of the marijuana itself, the means to transport it, etc. On January 23, 2015, the IRS released a memorandum to clarify how marijuana businesses are to determine COGS. Under I.R.C. §263A, certain costs associated with purchasing, handling and storage are not eligible for deduction. See the specific guidelines on cannabis tax laws.

The Law Office of Thomas Hogan is a Cannabis Tax Law Specialist in Modesto, California. We are prepared to help in your time of need. Feel free to contact our Modesto California Attorneys at (209) 214-6600.

Why You Should Retain an Attorney for Estate Planning

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Everyone has an estate. Your estate consists of everything you own – your home, car, personal possessions, bank accounts and any other assets. Because you are unable to keep these things forever, it is important to ensure they are allocated to the people and/or organizations of your choosing. This requires providing instructions stating whom you want to receive any assets, what they are to receive and when they are to receive it. That is the definition of estate planning.

Though estate planning may sound feasible for most people to do themselves, assistance from an attorney is recommended in order to assure costly mistakes are avoided. Knowing that your family’s future is secure will also help you have peace of mind.

Most people use a will to list how they would like their assets distributed. While this is a great start in estate planning, certain financial assets such as IRAs and 401(k)s may require additional documentation. Once you have taken an inventory of all of your financial assets, it is recommended to ask your attorney to help you obtain and complete the necessary documents.

It is also important to remember that an estate plan or will may need to be updated from time to time. Significant life events such as moving, the birth of a child, divorce or even acquiring an inheritance may trigger the need for changes to be made to an existing estate plan. Amended state and federal laws may also bring about the need to amend an estate plan. It is imperative to occasionally review your plan and keep it current.

In the case that a person becomes ill or disabled, it is important to include an advanced healthcare directive or durable power of attorney in the estate plan. If the situation arises that you are unable to communicate your healthcare wishes yourself, an advance healthcare directive will communicate them for you. A durable power of attorney allows another person to make medical and financial decisions in the event you are not able to so yourself. Including these documents in your estate plan will ensure your personal decisions in these matters are clearly outlined and respected.

The Law Office of Thomas Hogan is an Estate Planning specialist who is prepared to help in your time of need. Feel free to contact us if you are in need of help with Wills or Estate Planning in Modesto CA. Call (209) 214-6600 to speak with our Modesto California Attorneys.