Bankruptcy Law

What is bankruptcy?

Bankruptcy is included in the U.S.an Constitution and regulated by Congress. It is a process by which, if you disclose everything that you OWN and everything that you OWE, you will be excused from paying some or all of your debt, with exceptions based on your particular financial facts.

Can I do it myself?

Some try, but most fail and lose valuable protections in the process. Bankruptcy is a highly technical law, made more so in 2005 when Congress installed so-called reforms to discourage people from filing. After the passage of that law, many experienced bankruptcy attorneys left the practice, rather than run the risk of failing their clients in some unanticipated way. Those of us who remained in the practice of bankruptcy law have seen paperwork and time escalate per case to an unprecedented level. That, of course, means higher fees for folks who already are at the end of their financial rope. Nonetheless, the benefits a person can reap from a timely, effective bankruptcy filing are generally more than worth the fee you pay for professional representation.

What about using a non-lawyer ‘bankruptcy petition preparer?’

Don’t do it! There are a multitude of legal ‘traps’ for the unwary in bankruptcy, and a non-lawyer is not authorized to give legal advice. Consumer advocates are most concerned about the high probability that a debtor who relies on a non-lawyer petition preparer will be disadvantaged and give up property they otherwise could keep and lose valuable legal rights.

Who can file bankruptcy?

Anyone, with certain exceptions. For instance, if you previously filed a Chapter 7, you cannot file another Chapter 7 if the prior filing was less than 8 years ago. However, if that prior Chapter 7 filing was more than 4 years ago, you probably are eligible to file a Chapter 13 now.

What is Chapter 7, and what is Chapter 13?

If you qualify under the ‘means test,’ you can exempt your property and your monthly budget shows a negative cash flow, Chapter 7 is probably your best choice. If, however, you have mortgage or car financing arrearages, you will probably want to consider Chapter 13, which will allow you up to 60 months to catch up those arrearages. Chapter 13 also may be a wise choice if you owe taxes or cannot exempt all of your property (I told you it was technical!).

What is the means test?

Congress decided that debtors whose median family income exceeds the median income in the metropolitan statistical area in which the debtors live are presumptively abusing their bankruptcy right by filing Chapter 7 and wants them to file Chapter 13. There are many reasons why this concept does not help families suffering financial crises, and there are multiple strategies available for defeating the abuse presumption. An experienced bankruptcy professional can help you thread your way through this morass.

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What is mediation?

Mediation is a highly effective process in which the mediator, as a neutral, who facilitates the reaching of an agreement by the parties to a dispute.

What are the advantages of mediation over litigation?

Emotional wear and tear, time and cost can be reduced greatly and the outcome better controlled by avoiding rolling the dice with a judge who does not know you or have the chance to recognize the fine points of your position.  Courts encourage parties to try to resolve issues between themselves first. Experienced attorneys also recommend this.

How do I schedule a mediation session?

Both parties should schedule a time to come in together. The mediator cannot meet with one party alone. There is a full explanation of how the process will work prior to the beginning of the initial session, and the parties sign a consent to mediate form.

Who should I use as a mediator?

Whether or not your mediator is certified by the Virginia Supreme Court (a requirement for court-referred mediations), you want to ask about their training, certifications, and experience (both in number and results).  A mediator learns new strategies from EVERY mediation that she then deploys in facilitating her next one.  In hiring a mediator, you need to feel comfortable that you are both safe and being heard – much as you would evaluate a professional with whom you consult for any problem.

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What to Expect if You are Facing Divorce

  • Most divorce cases involve one person who has thought about it for months and is prepared mentally and financially to proceed and the other person who is completely unprepared and feels blind-sided by the “sudden” decision to separate. You cannot afford NOT  to have experienced representation, regardless of in which position you find. yourself.
  • You think your judgment is clear; it is not. You are, most likely, well out in left field.
  • Not only is YOUR judgment suspect, that of your spouse may be more so – and more often than not, they may morph into alien status at some point in the process
  • Pay a consultation fee to an experienced divorce professional. You really DO get what you pay for.
  • Begin counseling. See comment above about skewed judgment and left field.  Counseling records CAN be subpoenaed in litigation but do not let this dissuade you.  Reaching out for assistance reveals an adult in action; not seeking help is not adult behavior.
  • Open your own checking and savings accounts in preparation for moving some of the family’s funds under your sole control. Your legal professional will discuss this in more depth with you at your consultation.
  • Get a credit card in your name alone. If you and your spouse are jointly obligated on credit cards, contact the card issuer to close the account or remove your name. If you have granted your spouse ‘authorized user’ status on a credit card, contact the card issuer to terminate that authority.
  • If your kids are acting out, put them in therapy too. You are upset, you are making THEM upset and YOU cannot help them in your current mental state.  YOU have someone outside the fray to talk with – why would you deny your children the same respite?
  • It is more than likely that you will need to hire other professionals: financial planners, insurance agents, real estate agents, and so forth.  Start asking for referrals.
  • Do NOT follow the advice of non-lawyers on ANY issue, particularly in the early days of the separation – yes, that includes your best friends, the neighbors and YOUR parents.
  • GET ORGANIZED so you know the location of your bank and retirement statements, deeds, loan documents, birth certificates and social security numbers for everyone in the family.
  • Sit down and really start looking at where you spend your money. You can pretty much expect there to be less of it to go around with two households operating instead of one.
  • This is a PROCESS – and there is grief – and it takes TIME!

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Self Sabotage – let me count the ways, as they are legion . . .

  1. Ignore your lawyer. When you ignore your attorney’s advice, you are throwing away your money, all of that expertise, and hurting your case.
  2. Lie (or fudge the truth). Surprises in court are truly bad experiences for all involved. Some of the more draconian consequences include jail and your lawyer quitting.
  3. Balk at Social Services. Social Services can be involved, either in preparing a court ordered Home Study or in investigating a complaint of child abuse or neglect. Make an enemy of Social Services and lose your case!
  4. Alienate the Guardianad Litem. This is your child’s lawyer who plays a dual role.  He/she represents your child and also serves as the Court’s eyes and ears.  Even if your child tells the GAL what the child wants, the GAL can tell the Court he/she thinks that is unwise.  Complete the questionnaire the GAL gives you but return it to the GAL THROUGH YOUR ATTORNEY.  Remember, your judgment is skewed, and it is more likely than not that you do not recognize whether the impression you are making on the GAL is favorable or not.  It is critical that you make a favorable impression if you wish to maintain some sort of custodial relationship with your children.
  5. Disobey court orders. If you don’t abide by the court’s orders, you will be found in contempt and go to jail, be fined or pay some other penalty you really do not want to experience.  This rule applies even if you think it was a dumb order.
  6. Resist the other parent on everything/badmouth the other parent to the children. The children are half yours and half his/hers.  When you tell a child that one-half of him/her is evil, sick, bad, horrible – you are telling your child that the child is ½ evil, sick, bad, horrible.  If you are delivering this message to your children, you do not deserve custody.  The other parent may, by his/her conduct, have wounded you deeply.  Get over it.  You have children to raise who need your love and focus, which you cannot provide if you are spewing bile at the other parent.
  7. Blame the school. Get the child to day care or school on time with brushed teeth, brushed hair, clean clothes and a clean body. Communicate with teachers and day care providers in a reasonable and consistent matter about the progress and welfare of your child. These people may be called as witnesses.  What will they say about YOUR conduct toward the children, the other parent and them?.
  8. Diss the doctors. The children’s medical records may be reviewed by the guardian ad litem and/or the judge. Doctors can be called as witnesses in custody hearings.  What will THEY say about YOU and your conduct toward the children, the other parent and the providers?  Some parents get the idea that contesting their children’s diagnoses is a wise course of action during a custody contest.    Do not question their diagnosis or treatment plan just because the other parent brought the child to see them. You should cooperate fully with all medical doctors and professionals who are involved in your child’s care.

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Child Custody/ Support/ Visitation:

  • Whether in the Juvenile and Domestic Relations or the Circuit Court; whether representing the mother, father, grandparents, or other interested party; whether the parties are litigating or mediating this firm, can meet your needs.
  • We also handle child support collection and arrearage cases in court and in proceedings with the Division of Child Support Enforcement (DCSE), as well as findings of abuse or neglect by Child Protective Services (CPS).

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Practical Advice

  1. Any voicemail message that you leave your spouse, you will hear again. Don’t leave a message that you would not want a judge to hear.
  2. Any e-mail, text message, note or letter that you send, you will see again. Don’t write anything that you wouldn’t want a judge to read.
  3. GET OFF FACEBOOK AND STAY OFF IT FOR THE DURATION OF THE CASE, and take down whatever you have posted for the last couple of years, AT LEAST.
  4. Forensic computer experts can find anything you think you have erased from your computer. Be careful what you do on your home computer.
  5. If you make a commitment, keep it TIMELY – so don’t overcommit. Your kids do not want to hear you saying  ‘sorry;’ they want to hug you and see you and play with you.  Don’t let them down.
  6. Dress presentably for court! When you go to court, it is not leisure world. Make a good impression on the judge.
  7. Never sign a Separation Agreement without having it reviewed by a qualified attorney, no matter what the inducement. It is a legally binding contract, and getting out of it is a steep uphill climb, at best.

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What Is An Annulment and Should I Get One Instead of a Divorce?

A marriage can be annulled because it is void or voidable under Virginia law.  This is a detailed and technical area of the law, and there is much misinformation circulating in the public square about the grounds for seeking and obtaining one.  Be sure to raise this issue, if it is a concern for you, at your initial consultation so we can consider whether the FACTS of YOUR situation meet the law’s elements.

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