In todays tough economic times parents often want or need to move for various reasons – economic, financial, emotional etc…. or a combination of these. In the same breath, I have noticed that relocation cases have become very difficult to accomplish, especially where the other parent is heavily involved with the minor child. That is not to say they are impossible. I have handled many relocation cases – in fact my last 4 trials were these type of cases. Chapter 61.13001 has very specific factors the Court is to consider on relocations. These factors apply to temporary relocation (you can ask the Court to relocate while the action is pending) or permanent relocation.

Some of the factors include the nature of the relationship between the minor child and the parent proposing to relocate and the minor child and the parent not relocating, the feasibility of preserving the relationship between the non-relocating parent and the minor child, the reasons for relocation, the economic opportunities available in the new area and several more.

If you are considering relocating with your child, please read Chapter 61.13001 and contact me to discuss the statute.  If you are a parent facing a relocation and need to object to the proposed relocation, contact me to discuss the statute.  There are very specific things you need to file in order to start the process or specific things you need to do to object to the relocation.  I will be happy to sit down and discuss the entire statute and apply it to your facts. I have represented many parents seeking relocation and I have represented parents objecting to the relocation.

Some feel that Collaborative Divorce is a process that is more beneficial to children.  That can be true but to make it so, both parties must be committed to resolving conflict without litigation.  When a party says one thing but does another, that is not helpful to a true collaborative process.  Examples include cutting off the other spouse financially or any kind of abuse, whether it is emotional or physical.  In my practice, when a client approaches me and states they want to try to have an uncontested or collaborative type divorce, I commend them for trying that and we move forward in that manner.  If the other spouse is open to that and they have an attorney with an open mind, we can proceed along those lines.  It is important that if this collaborative process breaks down for whatever reason, we need to be ready to proceed with litigation.  In order to be a good litigator, an attorney must know when to stay out of court but also when to go with litigation.  I encourage my clients to attempt collaborative law but to be weary of the pitfalls and be ready to litigate when necessary.

I will post more articles on this subject in the future as it is broad and these two paragraphs are meant to introduce the subject.  If you have any questions, feel free to contact me.

There is a question on the bankruptcy petition that specifically asks if any friends or family members have received a payment on a debt from the bankrupt within the year before the filing date of the petition. If the answer is yes, the details of those payments must be disclosed. If the payment was for value received at the same time like money borrowed and then repaid within thirty days or the total of repayments was less than $500 and the case isn’t otherwise an asset case, then there is probably not going to be an issue that would be worth holding off on filing the bankruptcy. Also, if the payments are for secured debt, like if the relative or friend loaned the money for a car purchase… or as a lien against a paid off car and the lien was recorded simultaneously with the money loaned, then there is likely not a preference issue.

Another situation that is similar is one I have encountered frequently. If you gift money to family or friends, the amount of that gift must be disclosed if made within the year preceding the filing of a Bankruptcy Petition. Example: If you pay your son or daughter’s rent or mortgage, this must be disclosed to the Trustee. It is a gift. The same logic stated above applies: you can’t gift money to someone then file Bankruptcy and tell your extinguish your debt. The law does not allow you to gift money to someone then try to extinguish your debt – that gift could have gone to creditors instead.

If this is you, your Bankruptcy won’t necessarily be dismissed. You will have to pay an amount equal to the gift(s) into the Bankruptcy Estate.

For more information on this topic and others, feel free to contact me. ]]> http://williamorthlaw.com/gifts-or-payment-of-debt-to-friends-and-family_267/feed 0 http://williamorthlaw.com/search-and-seizure_262 http://williamorthlaw.com/search-and-seizure_262#comments Wed, 18 May 2011 19:47:53 +0000 William Orth http://williamorthlaw.com/?p=262 The U.S. Supreme Court has recently decided a case out of Kentucky that erodes the 4th Amendment. Before, one would think that a warrant is necessary for the police to enter their homes but in actuality, the police could enter with either a warrant or exigent circumstances. Now, if the police knock and hear “sounds” consistent with destruction of evidence (like paper crinkling or a toilet flushing) they can enter immediately without a warrant. Here is a link to the article: http://www.orlandosentinel.com/news/local/sc-dc-0517-court-search-20110516,0,2793857.story. Please contact me to discuss this case.

Basically relocations can be boiled down to three categories: economic, educational and relationship. In today’s economy, often times parents must obtain work elsewhere due to job loss. In my experience, the court’s will favorably look at a parent wishing to relocate with a specific job offered that significantly increases the household income.

As far as the educational category, sometimes a minor child has educational needs that cannot be met in their present school. If the court receives specific information relating to the educational opportunities elsewhere, balanced against the present educational opportunities, they may look favorably on the relocating parent.

The final category is relationship. This means the relocating parent is seeking to move to advance another relationship. Often times, they are either married or engaged to marry someone living elsewhere. This is the weakest of the categories.

Everything I spoke about must be weighed against the relationship the minor child, or children, has with the non-relocating parent. You must look at the meaningfulness of contact and the alternatives available.

For more information, please call my office to speak with me or arrange for a free consultation.

Chapter 13 is a wonderful tool that creates results in certain circumstances that we cannot make happen in Chapter 7 such as:  Catching up mortgage arrearages over time and avoiding foreclosure, stripping second and third mortgages from a primary residence, managing nondischargeable IRS or other debt that we cannot get rid of in Chapter 7 (like alimony/child support arrearages or some fraud judgments) and cramming down secured debt on some vehicles (along with the interest rate on the debt).  If a debtor has consistent income, but it doesn’t seem to be enough to go everywhere they need it to, then Chapter 13 may very well be the answer.  This is how it works:

In Chapter 13, the debtor creates a Plan that will be followed for three to five years.  As long as the Plan is maintained, the debtor is under the protection of the Bankruptcy Court.  This means that no creditor may call, mail, garnish, sue or do anything that would constitute a collection, besides file a claim for payment with the Court.

The Plan Payment is customized to the debtor’s particular circumstances, including income, living expenses, secured debt, priority debt, attorney’s and trustee’s fees and unsecured debt.  We first look at income compared to living expenses (the Trustee calls this “Feasibility”).  We do this because a Plan is not going to be successful if the debtor can’t afford to pay living expenses and meet the requirements of the Plan (ya gotta eat.).  Make a list of the monthly take home pay and a list of regular monthly living expenses (no debt payments) and then compare the two.  Is there money left over after living expenses that could be used to make a Chapter 13 Plan payment?  If the answer is “No”, then it’s not going to work and filing a Chapter 13 would be a waste of everyone’s time and effort.  If the answer is “Yes”, then we go to the next step:

What is the minimum floor for a Plan?  We have to look at several elements that go into calculating a Plan:  Secured Debt, Priority Debt, Unsecured Debt and Administrative Fees.

Secured Debt:  Jurisdictions differ, but in the Middle District of Florida all secured debt is required to be maintained through the Plan.  This means that mortgages and car payments (these are the most common kinds of secured debt) will be included in the Plan payment and those creditors will be paid by the Chapter 13 Trustee.  Any mortgage that is being kept and treated as secured debt (remember we are often reclassifying second mortgages and Home Equity Lines of Credit as unsecured debt right now) will be padded with two extra payments (we call them GAP payments) so the mortgage company can’t bombard debtors with surprise unpaid fees at the end of a plan.  I know it shocks you to hear that banks do that, but they do.  The secured portion of car loans can be “crammed down” to the NADA retail value of the vehicle if the loan is more than 2 ½ years old.  The balance is treated as unsecured debt.  The interest rates on vehicles paid through the plan can be changed to a fixed rate (on the day I write this it is 5.25%) for the life of the Plan.

Priority Debt:  Priority Debt is debt that cannot be discharged in a Chapter 7 or Chapter 13 Bankruptcy, but can be structured to be paid in full across a Chapter 13 Plan.  Priority Debt can be (but is not limited to): Back Child Support or Alimony, taxes owed to the IRS for recent tax years or wages owed to employees.  Priority debt must be paid in full across the Plan term.  So if a debtor owes $5,000.00 in Priority debt and goes into a 60 month (5 years) Plan, $83.33 of each monthly Plan payment would go toward satisfying that debt.

Unsecured Debt:  Unsecured debt is anything that is not Secured or Priority debt.  This category includes credit cards, medical bills, deficiencies from debt that used to be secured (like a car repo balance, property foreclosure).  Student Loans, even though unpaid amounts survive any bankruptcy, are classified as unsecured debt (pure evil, if you ask me).  Figuring the treatment of unsecured debt in a Chapter 13 Plan is involved and tricky.  The attorney has to figure out how much, if any, money would have been paid to the unsecured creditors if the case had been filed as a Chapter 7.  This is called “liquidity”.  The equivalent of liquidity must be paid to the unsecured creditors across the life of the Chapter 13 Plan.  That is a minimum.  If there is money available in the debtor’s budget (remember take home pay vs. living expenses?) to pay above liquidity to unsecureds, then that amount will be required.  It is the attorney’s job to make sure that no more than necessary is paid by the debtor/their client into the Plan to unsecured creditors.

Administrative Fees:  These vary among the jurisdictions.  In Orlando where I am, some attorney’s fees can be paid through the Plan (about ½ of mine are charged through the plan) and the Chapter 13 Trustee charges 10% to keep things going on her end.

You’re still waiting for the part where you get excited about the idea of being in a Chapter 13?  Here it is:  My typical Chapter 13 client right now starts out owing more on their home than it is worth with multiple loans, has IRS debt from a business that has failed, has personal guarantees on debt from the business that has failed, and owes as much or more than what their car is worth with an interest rate on the loan of 8% or higher.  They have a good income, it’s just not enough to maintain everything and doing nothing results in keeping the house and the car(s) not make sense.  In Chapter 13, the Plan would: keep the first mortgage current and strip the others from the home (so the home would only have the first mortgage and would be current at the end of the Plan), Pay off the IRS over 5 years, discharge the personal guarantees on the business debt, pay off the car at its present value or loan balance (whichever is lower) at 5.25% over the 5 years and likely pay –something- to everyone else, but only after living expenses, secured debt and priority debt have been addressed.  At the end of 5 years the client is DEBT-FREE except for the first mortgage, which is current.  Now be honest… Can you get there on your own in five years?  Is there any way?  If the answer is “No”, then you owe it to yourself and the ones who depend on you to explore the option of Chapter 13.  You need to explore the options and I can help you determine which type of Bankruptcy (or whether Bankruptcy in general) is right for you.