Bankruptcy Law:

What is bankruptcy?

Bankruptcy is included in the U.S. 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 is a neutral person who helps parties in dispute reach an agreement.

What are the advantages of mediation over litigation?

Cost is greatly reduced. Time is greatly reduced. Emotional wear and tear is also reduced. Satisfaction is increased. You walk away with something you have agreed to instead of rolling the dice with a judge who does not know you.

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.

Who should I use as a mediator?

You should look for a mediator who is certified by the Virginia Supreme Court. Ellen C. Carlsonr is certified as a mediator. She also trains other mediators in the Supreme Court approved certification classes on issues relating to divorce process and family law in Virginia.

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What To Expect When You’re Expecting To Get a 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. There are certain actions that can be undertaken if you want to be prepared.

  • Open a separate bank account. Do not put your money into a joint account with your spouse. Stop all direct deposits into joint accounts.
  • Open your own credit card accounts. Talk to credit card companies and check into removing your liability on any joint credit cards.
  • If needed for yourself and/or your children, consult with a therapist. This is a difficult time emotionally for all involved.
  • Be certain that you have the financial information that you will need. Know where the bank accounts are, together with the account numbers. Know where the investment accounts are. Know who holds the mortgage on the house and what the monthly payment is. Know what your spouse’s income is. Get a copy of the pay stub if you are able. Most of this information can be gathered by paying attention to the mail for a month or so.
  • Depending on the assets, you may want to contact a financial planner. Many of these are certified as divorce financial specialists.
  • Have the health insurance information and the insurance card itself.
  • Have a vehicle titled in your name or leased to you to avoid your spouse “repossessing” your car if it is in his/her name.
  • Find out from an experienced family law attorney what your rights are.

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How to Lose Your Custody Case

Often people sabotage their own custody cases. If you make any of the mistakes listed below, you are setting yourself up to lose!

  1. Don’t cooperate with your lawyer. You have hired someone who knows the law and knows the judges who will decide your case. If you fail to follow your attorney’s advice, you are throwing away all of that expertise, in addition to hurting your case. You are also increasing your legal fees needlessly. Cooperation includes telling the entire truth. Surprises in court are truly bad experiences for all involved.
  2. Don’t cooperate with 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. If you make an enemy of Social Services, bad consequences are sure to follow.
  3. Don’t cooperate with the Guardianad Litem. A guardian ad litem, who is a lawyer for your child, may be appointed by the court. The guardian ad litem typically interviews the child, parents, and others involved in the case. The guardian ad litem then reports back to the judge about their observations and opinions, often making a recommendation to the judge as to who should have custody. It is therefore crucial that the guardian ad litem have a favorable opinion about every aspect of you and your life.
  4. Don’t cooperate with the court. When a judge enters a court order, he expects everyone to abide by it. If you do not, the judge can punish you by finding you in contempt of court. More important though, he can rule against you, and you will not have custody. This rule applies even if you think it was a dumb order.
  5. Don’t cooperate with the other parent. While it may be human nature to behave badly toward the other parent during a custody battle, you need to resist this impulse. Judges consider which parent is cooperative and fair with visitation. Encourage contact between your child and the other parent. Do not create difficulties. Do not make a scene, especially in front of the child. This rule applies even if you think that the other parent is a horrible person and an even more horrible parent. Just remember they possibly feel the same way about you. Get over it.
  6. Don’t cooperate with the school. Teachers and babysitters often find themselves in court as witnesses. They can be friend or foe based on their perception of you. Get the child to school on time with brushed teeth, brushed hair, clean clothes and a clean body. Communicate and show your involvement and concern. Do not try to exclude the other parent from school information or school activities.
  7. Don’t cooperate with the doctors. Frequently, doctors are called as witnesses in custody hearings. At a minimum, their records are reviewed by the guardianad litem and/or the judge. 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).

Serving Hampton Roads, including Norfolk, Portsmouth, Virginia Beach, Chesapeake, Suffolk, Isle of Wight, Hampton, Newport News, & York County.

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Practical Divorce 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. Assume (because it usually is true) that nothing is ever completely erased from your computer. Forensic Computer Experts can find anything. Be careful what you do on your home computer.
  4. Never promise what you can’t deliver, and keep the promises you do make. Pick up your children when you say you will. Do not disappoint your kids.
  5. Dress up for court! Just because you are not at work, you are not on vacation. It is your job to make a good impression on the judge.
  6. Never sign a Separation Agreement because:
    • My spouse will go to counseling/reconcile, etc. if I sign it;
    • I want to avoid animosity;
    • I just want this over with

It is much less expensive to have a lawyer review an Agreement before you sign it than to live with the consequences of having signed it forever. This is a legally binding contract, and you probably will not be able to get out of it.

Serving Hampton Roads, including Norfolk, Portsmouth, Virginia Beach, Chesapeake, Suffolk, Isle of Wight, Hampton, Newport News, & York County.

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When Can I Get An Annulment?

A marriage can be annulled because it is void under VA case 20-38.1 and/ or because it is voidable under VA code 20-89.1.

Grounds for Annulment:

  1. No license/solemnization– the marriage was performed without the required license.
  2. Bigamy– the marriage was entered into prior to the dissolution of an earlier marriage of one of the parties.
  3. Incest– the marriage was between relatives forbidden to marry.
  4. Lack of capacity-mental infirmity– either of the parties lacked capacity to consent to the marriage at the time it was performed because of mental incapacity or infirmity.
  5. Fraud or duress– fraud must be materially affecting the essentials of the marriage.
  6. Impotence– natural or incurable impotence existing at the time of entering into the marriage contract (and the other party did not know it).
  7. Felony conviction– either party, without knowledge of the other, had been convicted of a felony prior to the marriage.
  8. Pregnancy by third party– at the time of the marriage, the wife, without the knowledge of the husband, was with child by a person other than the husband.
  9. Pregnancy of a third party– the husband, without the knowledge of the wife fathered a child born to a woman other than his wife within 10 months after the marriage was solemnized.
  10. Prior prostitution– either party, without the knowledge of the other, had been a prostitute prior to the marriage.If the marriage does not meet one of the above then you must obtain a divorce regardless of the length of the marriage, whether you are a service member or any of the other things that you have been told.

Serving Hampton Roads, including Norfolk, Portsmouth, Virginia Beach, Chesapeake, Suffolk, Isle of Wight, Hampton, Newport News, & York County.

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