April 28, 2011
Bankruptcy Secrets They Don’t Want You to Know
Are you distressed by the amount of debt you owe and feel uncertain as to how you will pay for it?
Are you afraid to open your mail because of overdue bills?
Are you receiving harassing phone calls from creditors looking for money?
Are most of your bills paid late because you don’t have the money?
Do you carry balances on more than three credit cards?
Are you a month or more behind on your credit card payments?
Are most of your credit cards maxed out?
Are your credit card interest rates in the double digits?
Do you use one credit card to pay off another credit card?
Do you find yourself routinely paying late fees?
Are you a month or more behind on your mortgage payments?
Is your home in pre-foreclosure?
Is your home worth 30-50% less than what you owe on it and your mortgage lender is unwilling to negotiate?
Have you recently taken out a pay day loan or title loan on your car?
Are you using your retirement savings to pay your living expenses?
Are you using credit cards to pay for everyday necessities like groceries or gas?
Have you only made minimum payments on your credit cards for more than three months in a row?
Is your car in danger of being repossessed?
High Traffic in California Family Law Courts
California Family Courts deal with a huge volume of traffic every year. Just the Los Angeles Superior Court – Family Law handles 100,000 filings per year. This means that there are often inevitable delays. One way to smooth and speed the process is to ensure that you are represented by an experienced Family Law Attorney.
The high number of filings combined with the fact that a high percentage of litigants in family law are unrepresented, which means they don’t have an attorney. Many courts have adopted local rules and procedures in an attempt to more efficiently process the high volume of family law cases.
Because of the complexity of Family Court procedures, many parties who chose to represent themselves in their divorce or other family law proceedings make errors that negatively affects the outcome of their case.
The California Supreme Court found, in its landmark 2007 decision, Elkins v. Superior Court, that certain time-saving procedures, such as video testimony, deprive family law litigants of due process protections. Due process is the name given to the minimum “process” necessary to allow litigants to have a full and fair hearing of their issue.
In Elkins, the California Supreme Court, while sympathizing with the overworked family courts, noted the stakes in a family court case:
But family law litigants should not be subjected to second-class status or deprived of access to justice. It is at least as important that courts employ fair proceedings when the stakes involve a judgment providing for custody in the best interest of a child and governing a parent’s future involvement in his or her child’s life, dividing all of a family’s assets, or determining levels of spousal and child support.
Access to justice requires that parties be able to appropriately address the court and present their cases.The California Legislature responded to the Elkins case by passing Assembly Bills 939 and 1050. AB 939 ensures that parties in family courts will have the opportunity to testify in their case. AB 1050 requires that courts allow children age 14 and older to testify in cases affecting their custody or visitation.
Both acts by the legislature seem reasonable, and in view of the Elkins decision, are now required. But they both will come with a price. The effect of allowing more testimony in family court cases will be delay. The courts will have to allow more time for every case. Without the legislature significantly increasing funding for the family courts, schedules will stretch farther out and cases will take even longer to compete. With the budget crises affecting California, however, it seems very unlikely the courts will receive any additional money.
So this is why it’s important that if you are considering divorce, or have another family law issue that you consult with an experienced family law attorney. They can help you minimize the time it will take to obtain a dissolution judgment and make the process smoother and less frustrating. Not to mention, making sure that you get a more favorable outcome in your case.
April 22, 2011
Charlie Sheen Custody Case
Charlie Sheen has lost his battle to get custody of his two-year-old sons Bob and Max. A Los Angeles judge ruled that the actor’s estranged wife Brooke Mueller should maintain legal and physical custody of the twin boys, despite a rumored drug relapse. Sheen had been seeking temporary custody of the boys following reports that Mueller had returned to rehab after a week of alleged substance abuse. Apparently Mueller refused to take a drug test recently. As part of their previous custody arrangement, Sheen and Mueller had agreed to be drug tested randomly three times a month. While Mueller undergoes drug treatment at an undisclosed rehab facility, her mother Moira Fiore, will provide primary care for the boys.
Sheen left court flanked by security and immediately headed to Washington, DC, for a performance of his Violent Torpedo of Truth stage show. Attorneys for both sides refused to divulge details of the hearing.
Los Angeles Superior Court Judge Hank Goldberg had earlier sealed the hearing at the request of Mueller’s attorney, saying it was ‘in the best interest of the children’ because of ‘questions of abuse and other inflammatory and emotional issues.’ The judge was aware that Mueller had relapsed into drug use but was equally disturbed by Sheen’s past substance abuse and the fact that he bragged about it. The judge ruled that they will continue to share custody under their existing agreement.
Bankruptcy To Relieve Debt
For millions of Americans, recent economic hard times have meant a growing amount of debt which is rapidly becoming harder to control . Across the country, people are struggling to get a firm footing again. If you are beginning to feel overwhelmed by debt, there are several things to keep in mind.
Firstly, move quickly. Many individuals try to avoid bankruptcy or otherwise dealing with their financial problems for as long as possible. Unfortunately, this is usually not the best option. Racking up huge credit card bills and missing payments can cause a much bigger impact on your credit score than simply facing hard facts early on.
Bankruptcy is often the best option for escaping debt. The type of bankruptcy that you may want to consider depends upon your individual circumstances. For example, if you have few valuable assets, little or no equity in your home, and have trouble maintaining a steady stream of income, Chapter 7 bankruptcy may be beneficial. In a Chapter 7 case, your property of value is liquidated and most types of debts are immediately discharged. Most times, however, individuals do not have property that exceeds their exemptions that they are permitted under federal and state law so they are able to file Chapter 7 bankruptcy and still keep assets.
To find out more, it’s important that you contact an experienced bankruptcy attorney as soon as possible. If you have questions about filing for bankruptcy I offer a free 30 minute telephone bankruptcy consultation where we can discuss your debt situation and you can get your questions answered.
April 14, 2011
Estate Planning Issues Following Divorce
This week I’d like to feature the following article on Estate Planning following Divorce by Charlene L. Usher, Esq.
The emotional turmoil of divorce can be overwhelming or liberating depending on one’s perspective. While it is commendable and responsible for families to do estate planning, there are some issues to be considered following divorce.
In most cases, the husband and wife seeking to dissolve their marriage are no longer interested in their ex-spouse being the beneficiary to their estate OR leaving their children in a position to be disinherited due to the fact that their ex-spouse may re-marry following the divorce. If their original plan was to leave everything to their spouse and then to their children, their spouse may still get everything if they do not modify their estate plans following divorce.
Beneficiary Designations
Following a divorce, the items below should be amended unless one chooses to leave everything to his/her ex-spouse:
1. Beneficiary designations for the following financial instruments:
• Employer retirement plans
• Individual Retirement Accounts (IRA)
• Life insurance
• Annuities
• Health savings accounts
2. Transfer on Death (TOD) investment accounts
3. Payable on Death (POD) bank accounts
4. Will
5. Health care powers of attorney and living wills
6. Powers of attorney
7. Revocable trusts
8. Advanced estate planning structures such as irrevocable trusts
Medical & General Powers of Attorney
Generally speaking, if one has chosen to no longer be married to their spouse, they usually no longer want to leave their health care or financial decisions in the ex-spouse’s hands. It is therefore imperative that amongst the documents to be amended are Advanced
Health Care Directive and Durable Power of Attorney.
Guardianship & Re-marriage issues
In a perfect world, if something happened to one parent, the other parent would assume guardianship of the minor child. However, that assumes that the non-custodial parent desires to raise the child and is fit to do so. If the ex-spouse is likely to assume guardianship, they will be responsible for providing a residence for the child, provide for care and support and education.
If the client is concerned that monies left to a child may not be used as the client wishes if the ex-spouse has access, the client can designate in the Revocable Living Trust (RLT) that the client’s successor trustee provide for specific items out of the funds of the trust such as private school tuition, extra-curricular activities, a car at a certain age, college applications and tuition. A parent can protect a child’s inheritance by having an RLT in place with a trustee to carry out the grantor’s wishes as specifically designated. The money would not be paid directly to the guardian, but would truly be for the benefit of the child. This also protects the grantor’s assets, which should be for the benefit of the children, from getting into the hands of the client’s ex-spouse’s new spouse should he or she remarry.
One should also consider naming successor guardians in the event the ex-spouse does not want to raise the kids or is otherwise unavailable.
Re-marriage
Perhaps a newly-divorced parent has a significant other in his or her life, and remarries. This situation could result in a parent unintentionally disinheriting existing children. Without legal documentation to indicate otherwise, a spouse is generally entitled to one-half of the deceased spouse’s estate. The second spouse may not be the resulting caretaker of the former step-children, particularly if another guardian has been named, yet he or she has received half of the assets intended to provide for them.
A divorced parent may typically desire to leave assets to care for BOTH the new spouse and the children. In such a situation, the parent should sit down with a financial advisor and an estate planning attorney to assess the options. An easy solution is the use of additional life insurance to assist the parent in his or her wishes to provide for both the minor children and the new spouse. Term insurance can be a low-cost solution to provide these benefits until the children reach adulthood, assuming the parent is insurable.
In most cases, changing these items is as simple as requesting, completing and filing the appropriate form. Since retirement & employer plans often represent the most significant portion of an individual’s net worth and liquid assets, it is particularly important to amend the beneficiary designations on these accounts.
Because assets passed to a named beneficiary pass under operation of contract, this designation supercedes the person’s will and state intestacy statutes. If no changes are made, the ex-spouse who was originally designated as the beneficiary will be entitled to the benefit, despite the existence of a will or trust designating otherwise or a new spouse. Beneficiary designation will always trump a will
or intestacy laws.
Complex changes
Advanced estate planning structures such as irrevocable life insurance trusts (ILIT’s), Qualified Personal Residence Trusts (QPRT’s), and charitable trusts may be very difficult, if not impossible, to amend, since the original intent of creating these structures was to make an irrevocable election, usually structured to benefit both husband and wife together. Should the husband or wife assume the
power to change the irrevocable election, the tax advantages gained by the structure may be destroyed. It is imperative
that one works closely with his/her attorney, as well as the trustee, to explore possible options.
One should also keep in mind that most states have an “elective share statute” which provides that one’s spouse (whether estranged or not) will automatically be entitled to a certain percentage of the estate. However, through proper planning, there are a number of ways to avoid or limit the assets which are subject to the elective share, and to provide that the estranged spouse does not receive more of the estate than one wants him or her to. This is another reason it is imperative to re-visit one’s estate plan following divorce.
In many cases, a family law attorney is not as well-versed in estate planning issues. Their focus is to help the client dissolve the marriage and make decisions regarding asset distribution, custody, child-support and such issues. However, beyond that, it is advisable that one revisit his/her estate plan with the assistance of a qualified estate planning attorney to help address the issues raised in this article. Estate planning attorneys can work closely with family law attorneys to conclude this final step of the dissolution process.
How To Survive Bankruptcy
It’s surprisingly common these days. Debts pile up and then something unexpected happens; an illness, a layoff, a divorce. Next thing you know you’re in financial strife and considering bankruptcy as an option. In earlier days, a debtor had a life of serfdom or prison to look forward to, but nowadays, we’ve learned to be slightly more forgiving. The good news is that filing for bankruptcy is not the end of your financial life. So here’s a look at what to expect when you file for bankruptcy, and how to survive.
Bankruptcy may not solve all your problems. Bankruptcy will not clear away secured debts and it will not free you from spousal support, child support, student loans, taxes or other legally-protected obligations. But it does clear your unsecured debts, which are, generally speaking, your bills – credit card bills, medical bills, phone bills, etc. – plus loans where nothing was put down as collateral.
Don’t liquidate your retirement portfolio to try and pay off bills. Take your time and gather all your documents. Also, avoid depositing money into banks that you have credit card or loan accounts at. They can seize your deposits if an account goes delinquent.
Anyone filing for bankruptcy is required to attend credit counseling, but it is a good idea anyway. You may be lucky enough to find a way around bankruptcy, and you’ll certainly get helpful debt-management tips. For example, you can pay a credit card to zero so it’s not listed as a creditor in your filing and then keep it for after the filing to build up credit at a lower interest rate than you could possibly get after bankruptcy.
Once your bankruptcy has been filed, the calls from collection agencies will stop. This is when you’ll be required to visit a credit counselor and attend a creditors’ meeting. The bankruptcy will be finalized and you will begin with a fresh start under Chapter 7. The bankruptcy will remain on your record for seven to 10 years, making it difficult to get most forms of unsecured loans. It will also result in higher interest rates when you get a secured loan. If you’re like the majority of people who file for bankruptcy, this will be a small price to pay to be finished with the crisis that brought the bankruptcy on.
If you have questions about filing for bankruptcy I offer a free 30 minute telephone bankruptcy consultation where we can discuss your debt situation and you can get your questions answered.
April 7, 2011
Jermaine Jackson Ordered to Pay Back Child Support
Jermaine Jackson has been ordered to hand over $80,000 in missed child support payments, although he says he’s too poor to pay. Jermaine, 56, appeared in a Los Angeles courtroom recently battling ex-wife Alejandra Jackson over his $3,000 a month support payments for their two children, Jaafar and Jermajesty Jackson.
The court has laid down the law as far as payments go. Jackson must submit a $5,000 cashiers check immediately and another $15,000 in the next few days, $20,000 by mid-April and the final $40,000 by May 13.
It appears to be highly doubtful that Jackson can come up with the money which may leave the court with its only option, jailing him. He has already had his driver’s license pulled until the first check is submitted.Because the singer and dancer is so far behind in his payments, his California driver’s license was recently revoked, but it will be reinstated if he makes the minimum payment of $5,000 immediately.
His ex-wife, Alejandra, has been living at the Jackson family compound for the last 18 years and is currently in a legal battle with the family who wants her to move out.
Jermaine doesn’t believe he should have to make the payments, since his ex-wife has been living rent free at the Jackson family compound in Encino, California, for years.
Bankruptcy Vs Settling Your Debt
In this tough economy, there are many people struggling with the decision of whether to cash out retirement funds to pay off debt or consider the option of bankruptcy. While bankruptcy still has some stigma attached, that stereotype is vanishing as more and more people find themselves desperate and without other options.
One of the main advantages available to a borrower in Chapter 7 bankruptcy is the discharge of debts. A Chapter 7 bankruptcy discharges the borrower from personal liability for certain specified types of debt. In other words, the applicant is no longer required by law to pay any liabilities that are discharged. The discharge functions as a permanent order directed to the creditors included in the bankruptcy and requires them to refrain from proceeding with any form of a collection action on the discharged debts. The court order includes any legal action and contact with the applicant, such as telephone calls and letters. This is known as an automatic stay.
There may be disadvantages to filing for bankruptcy. Bankruptcy will have a negative impact on your credit. As a matter of fact, it can stay on your credit report for up to 10 years. However, it will not take 10 years to regain a good credit score or qualify for prime rate loans. Typically, after about two years, a person who has filed Chapter 7 bankruptcy can finance the purchase of a home with a good interest rate. In less time than that, it is possible to purchase a car with a reasonable interest rate.
What about the downsides to paying off debt using retirement funds or settling delinquent accounts? Though it may not seem logical, there are several disadvantages: Your credit will suffer if you have settled accounts that are not paid in full. The impact will not be as severe as a bankruptcy, however your credit will be heavily impacted from any delinquent payments prior to settling the debts.
You can be taxed on the amounts your creditors write off. This is called cancellation of debt income. The creditor can send you a 1099 at the end of the year for any amount that was written off. You may be required to claim that amount as additional income for tax purposes and pay more taxes as a result.
You may deplete an asset that you will need in the future. Retirement plans are completely protected from your creditors when you file bankruptcy. This is probably the asset that is most crucial to protect because it means security for your future. Unfortunately, we won’t be able to rely on Social Security forever, so it is important to protect your savings in order to live comfortably in retirement.
While settling debt can be a good alternative to filing bankruptcy, it is important to know the consequences. Far too many people use their savings to try to get out of debt, only to find that they are not able to settle all of their outstanding accounts and end up filing bankruptcy in the end. Before proceeding in either direction, it’s important to get the right advice so you can investigate your options and consider the pros and cons in order to make an educated decision that is in your best interests, especially in the long-term. If you have questions about filing for bankruptcy I offer a free 30 minute telephone bankruptcy consultation where we can discuss your debt situation and work out a plan of action.
LA Family Law 