Canterbury Law Group, Author at Canterbury Law Group

Regular Post

Written by Canterbury Law Group

19 September 2023

How Bankruptcy Can Help With Foreclosure

How Much Does It Cost To File For Bankruptcy

When confronted with foreclosure, many debtors file for bankruptcy—and with reason. By filing for bankruptcy, a debtor can obtain what is known as an automatic stay. During the bankruptcy case, the stay serves as an injunction, or bar, prohibiting creditors from attempting to collect debts or enforce liens.

In some instances, a debtor is not entitled to the automatic stay, or the lender successfully petitions the court to lift the automatic stay. Whether you file for Chapter 7 or Chapter 13 bankruptcy determines whether the foreclosure process is halted temporarily or permanently.

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The Process of Foreclosure

When you purchase a home, you agree that if you fall behind on your monthly payments (default on the loan), the lender has the right to sell the property at auction and apply the proceeds to your loan balance. Prior to the house being auctioned, the lender must follow the foreclosure procedures outlined in federal and state law.

After the federal and state waiting periods for homeowners to catch up on arrearages or apply for a loss mitigation program (such as a mortgage modification) have expired, the lender may proceed with foreclosure in accordance with state foreclosure laws.

A lender may foreclose in one of two ways, depending on state law:

Foreclosure through the courts. All states permit lenders to foreclose through a “judicial” process that begins with the bank filing a court lawsuit. The homeowner has the option of responding to and defending the suit. The case will be litigated, and if the bank prevails, the court will order the home sold at auction.

Foreclosure without judicial intervention. Certain states permit lenders to use a streamlined “nonjudicial” foreclosure procedure that entails following state-mandated steps. The bank is frequently required to allow the homeowner time to bring the account current. Additionally, the lender must notify the owner of the sale date and, in some cases, publish the sale date via newspaper advertisement or public posting. Following completion of the steps, the lender may sell the home at auction without first obtaining court approval.

As long as the foreclosure sale has not occurred, filing for bankruptcy will halt either type of foreclosure process.

Can Bankruptcy Help With Foreclosure?

Yes, bankruptcy can help with foreclosure. In fact, it’s one of the most effective ways to stop a foreclosure and save your home.

When you file for bankruptcy, an automatic stay goes into effect immediately. This stay stops all creditors from taking any collection action against you, including foreclosure proceedings. This means that your lender cannot continue with the foreclosure process until the bankruptcy case is resolved.

There are two main types of bankruptcy that homeowners can file for: Chapter 7 and Chapter 13.

Chapter 7 bankruptcy: Chapter 7 bankruptcy is a liquidation bankruptcy, which means that your non-exempt assets will be sold to repay your creditors. However, your home is exempt from liquidation in most states, so you may be able to keep your home even if you file for Chapter 7 bankruptcy.

Chapter 13 bankruptcy: Chapter 13 bankruptcy is a reorganization bankruptcy, which means that you will create a repayment plan to pay back your creditors over a period of 3-5 years. If you are able to successfully complete your Chapter 13 repayment plan, you will be able to keep your home and eliminate any remaining debt.

Whether Chapter 7 or Chapter 13 bankruptcy is the best option for you will depend on your individual circumstances. It is important to speak with a bankruptcy attorney to discuss your options and get advice on how to best proceed.

Here are some of the benefits of filing for bankruptcy to stop foreclosure:

It can stop the foreclosure process immediately.
It can give you time to get on your feet financially and catch up on your mortgage payments.
It may allow you to keep your home, even if you are behind on your mortgage payments.
It can eliminate other debt, such as credit card debt and medical debt, which can make it easier to afford your mortgage payments.

However, it is important to note that bankruptcy is a serious financial decision and should not be taken lightly. Filing for bankruptcy will have a negative impact on your credit score and can make it difficult to obtain new loans in the future.

When the Automatic Stay Is Inapplicable

The stay is automatically triggered upon filing for Chapter 7 or Chapter 13 bankruptcy. There is no additional action required to bring the automatic stay into effect. (For more information, see Bankruptcy’s Automatic Stay.)

There are, however, two exceptions to the automatic stay that prohibit debtors from interfering with a creditor’s right to foreclose by filing and dismissing successive bankruptcy cases. The following are the rules.

Within the last year, one previous bankruptcy case was dismissed. The automatic stay is only in effect for 30 days following your bankruptcy filing.

Two or more previously dismissed bankruptcy cases within the last year. The automatic stay is not invoked at all.

Debtors who qualify for the automatic stay exceptions may petition the bankruptcy court to impose the automatic stay and halt the foreclosure. To prevail, the debtor must establish beyond a reasonable doubt (a relatively high standard) that the previous bankruptcy cases were not filed in bad faith.

The automatic stay exceptions for repeat or serial filers do not apply if you initially filed for bankruptcy under Chapter 7 but then converted to Chapter 13 after the means test determined that your income was too high to qualify for Chapter 7.

How the Automatic Stay Can Aid in Foreclosure Prevention

The automatic stay extends the time period available to attempt to resolve a pending foreclosure. The options for dealing with an impending foreclosure are largely dependent on whether you file for Chapter 7 or Chapter 13 bankruptcy.

Bankruptcy under Chapter 7

Chapter 7 bankruptcy does not include a mechanism to assist you in catching up on payments and retaining your home. Therefore, if you’re falling behind and wish to remain in your home, this is probably not the chapter for you. However, there are additional advantages.

When you file for bankruptcy under Chapter 7, all of your property becomes part of the bankruptcy estate. The Chapter 7 trustee appointed to your case will liquidate (sell) your assets and make any necessary payments to creditors. The automatic stay allows the trustee to sell property that would have been foreclosed on otherwise if there is a potential benefit to the estate (the property must have sufficient equity).

Depending on your circumstances, the stay may also be beneficial to you:

If the property is your primary residence, the stay may provide you with additional time to secure alternative housing or negotiate a loan modification with the lender.

You may be entitled to a portion of the proceeds if the trustee sells the property for a sufficient price. After resolving any mortgages or other valid liens, the trustee must reimburse you for your homestead exemption before resolving any other creditors. Additionally, you are entitled to excess proceeds if the property sells for a price sufficient to pay off all of your creditors.

Bankruptcy under Chapter 13

The automatic stay in Chapter 13 bankruptcy may provide you with time to catch up on any mortgage arrears and remain in your home. You’ll repay debts (some in full, some in part) over a three- to five-year period—including delinquent mortgage payments.

To make Chapter 13 restructuring effective, you must have sufficient income to cover current mortgage payments and make payments on arrearages that accrued prior to filing bankruptcy. Once the court approves a Chapter 13 repayment plan that includes mortgage arrears, the lender is prohibited from foreclosing. However, if you fall behind on mortgage or arrearage payments following the approval of your plan, the lender will be able to proceed with the foreclosure.

Removal of the Automatic Stay

A lender may file a motion with the bankruptcy court requesting that the automatic stay be lifted (terminated) and the lender be permitted to proceed with foreclosure. You have the right to respond, and if you do, the bankruptcy court will hold a hearing before deciding whether to lift the stay. If the court lifts the stay, the lender may resume foreclosure efforts, unless the bankruptcy court orders otherwise.

Speak With Our Bankruptcy Lawyers In Phoenix & Scottsdale

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Canterbury Law Group should be your first choice for any bankruptcy evaluation. Our experienced professionals will work with you to obtain the best possible outcome. You can on the firm to represent you well so you can move on with your life. Call today for an initial consultation. We can assist with all types of bankruptcies including Business Bankruptcy, Chapter 7 Bankruptcy, Creditor Representation, Chapter 5 Claims, Chapter 13 Bankruptcy, Business Restructuring, Chapter 11 Bankruptcy, and more.

*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs.

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Regular Post

Written by Canterbury Law Group

19 September 2023

Supervised Visitation

The noncustodial parent may only see their child under the supervision of another adult during supervised visitation. It helps to maintain the parent-child bond while keeping the child safe. Also, it ensures that during visits, the custodial parent is aware of the child’s whereabouts.

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Supervised exchanges, which shield parents from one another and shield children from witnessing conflict, are not the same as supervised visitation, also known as supervised contact, supervised parenting time, and similar terms.

If supervised visitation is required, the parenting plan will include a court order for it. In order for the supervised visits to take place, the parents might also need to set up a visitation schedule.

When might supervised visitation be required?

A parent has abused the child physically, sexually, or emotionally.
One parent has experienced emotional, sexual, or physical abuse at the hands of the other parent.
A parent is struggling with substance abuse.
An untreated mental illness in a parent endangers the child.
One of the parents could abduct or kidnap the other.
A kid has been neglected by a parent
After being gone from the child’s life, a parent wishes to establish a relationship with them.
Have there been any instances of potentially hazardous family dynamics?
Supervised visitation is frequently a transient arrangement that, should the noncustodial parent fulfill certain conditions, can result in unsupervised visitation. For instance, in order to be granted unsupervised visits, the noncustodial parent might have to take an anger management course, get counseling, or submit to six months of clean drug tests.

The operation of supervised visitation

The terms of the supervised visits will be outlined in the court order if the judge determines that your child would benefit most from supervised visitation.

The location of the supervised visits may be mandated by the judge. For the duration of the visits, a monitor will be in the room with the noncustodial parent.

A social worker or someone similar may be assigned by the judge to go with the child to the noncustodial parent’s house (or other agreed-upon location). Throughout the entire visit, the assigned monitor will accompany the child and then give them back to the custodial parent.

If the participant is willing and the parents can agree on a person, the judge may permit a friend, relative, or acquaintance to serve as the monitor for supervised visits. Should you choose this course of action, you must evaluate the individual’s dependability and credibility.

Including supervised visitation in your custody arrangement

Make sure to use precise language that eliminates any possibility of misunderstanding when drafting your parenting plan to include supervised visits. Try to be as detailed as you can.

A lawyer can draft language that the judge will accept if you hire them. Make use of technology to eliminate uncertainty when creating your own plan.

Immediately after a judge signs your plan into a court order, the supervised visitation requirements under it can be legally enforced.

Plan out your timetable. Obtain a formalized parenting plan. Make a parenting time calculation. Have everything documented so you’re ready.

Do I Need an Attorney to Enforce Father’s Rights?

State laws differ when it comes down to the visitation rights of a father. Because cases involving family law can be time-consuming, exhausting, and emotional, it is highly advisable that you talk with an attorney near you. A knowledgeable and experienced family law lawyer can guarantee that your rights to visitation are protected, and can assist with any other issues that involve your case.

Source: Tipton, Sarah. “Visitation Rights for Fathers.” LegalMatch Law Library, 14 Aug. 2018, www.legalmatch.com/law-library/article/visitation-rights-for-fathers.html.

Speak With Our Father’s Rights Attorneys In Scottsdale

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Our Father’s Rights, child custody, and guardianship attorneys in Phoenix and Scottsdale address your case with concern and personal attention, and always have you and your children’s best interest in mind when offering legal solutions.

We are experienced family law attorneys and will work with you to obtain the best possible outcome in your situation. You can trust us to represent you fully, so you can get on with your life. Call today for an initial consultation!

*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs.

Father's Rights, Fathers Rights, Fathers Visitation Rights

7 Ways To Lose Custody of Your Child: Moms and Dads

Regular Post

Written by Canterbury Law Group

7 September 2023

7 Ways To Lose Custody of Your Child: Moms and Dads

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Parents often wonder how a mother can lose custody of her child. The truth is mothers can lose custody in the same way as fathers.

It’s a common misconception that family courts favor mothers, when in fact, no state has laws favoring mothers in custody decisions. Many states actually have laws that prohibit family court judges from considering either parent’s gender.

Custody cases in all states are decided based on the child’s best interests.

Contrary to popular belief then, a mother — just like a father — can lose custody if the court decides that it’s best for the child.

Bring calm to co‑parenting. Agree on a schedule and plan. Be prepared with everything documented.

Make My Schedule and Plan Now

It’s generally considered best for both parents to be involved in their child’s upbringing. When a parent loses custody, judges still typically order some limited parenting time for them, such as supervised visitation.

Family courts often set conditions to allow the restricted parent to eventually earn unrestricted or additional time with the child. For example, if a mother loses custody for drug abuse and has supervised visitation, the court may allow her to have unsupervised visits after completing addiction treatment and participating in drug testing.

How a mother or father can lose custody

In all states, the court’s primary concern is the child’s physical safety and caretaking needs. Family courts also ensure that children have stable homes and are secure with both parents.

If a mother or father poses a risk to their child’s safety or security, the other parent can ask the court to order sole physical custody to restrict the unsafe parent’s time with the child and sole legal custody to limit their role in making decisions about the child.

Abusing or neglecting the child

If a parent physically abuses or neglects their child, courts typically award sole custody to the other parent.

Child abuse is defined as any non-accidental physical harm to a child caused by a parent or caregiver. It includes hitting, punching, whipping, burning, hair pulling, shoving, throwing, choking and any other action that causes physical injury. Physical discipline (e.g., spanking) is not considered abuse if it does not injure the child. (However, experts recommend non-physical discipline.)

Sexual abuse occurs when a parent or caregiver uses a child for sexual purposes or involves the child in sexual acts. It also occurs when an older or more powerful child uses a younger child for sexual acts. Parents who sexually abuse their child or knowingly put them at risk of sexual abuse typically lose custody and, often, parental rights.

Emotional abuse includes not offering affection, shaming the child, telling them they’re unwanted, yelling at them and keeping them isolated from others. Courts consider emotional and psychological abuse when determining custody, especially if a parent has mental health issues that negatively impact their parenting (e.g., if a parent is a narcissist).

Neglect is a form of abuse in which a parent fails to meet the child’s care needs. Physical neglect includes not caring for the child’s hygiene and not providing adequate shelter, food or clothing.

Leaving a child alone or with inadequate or dangerous caregivers is also considered neglect. Educational neglect occurs when a parent doesn’t enroll the child in school, allows them to miss a lot of school or ignores their special education needs. Medical neglect is failure to ensure the child receives necessary or recommended medical care.

Using alcohol or drugs irresponsibly

If a parent’s alcohol or drug use impacts the child, or if a parent has untreated alcohol or drug addiction, courts will most likely restrict their parenting time to supervised visitation. Illegal drug use, even if the parent hasn’t been convicted of a drug crime, can also cause a parent to lose custody.

Additionally, many states have laws addressing child custody and convictions for driving under the influence (DUI). In Arizona, for example, the court can deny or restrict parenting time for a parent who has a DUI conviction within 12 months of the custody dispute.

If a parent who formerly abused alcohol or drugs has received treatment and is otherwise a safe parent, courts will most likely not restrict their custody, especially if they’ve been in recovery for a significant amount of time. The court may require drug testing or evidence of ongoing treatment.

How cannabis use impacts custody depends on the state’s laws and if the parent’s use affects the child. Like moderate and safe alcohol use, the court may not consider it a risk if the parent uses it legally, safely (e.g., no driving under the influence) and only when they’re not around the child.

However, if the parent uses cannabis illegally or endangers the child through their use, the court may limit their custody. It’s also important to remember that cannabis is still illegal under federal law, even in states that have legalized. Depending on the court and judge, even legal recreational use could be viewed as criminal activity that endangers the child.

Abducting the child

Parent–child abduction — also called parental kidnapping and custodial interference — is a crime that occurs when a parent keeps the child from the other parent with the intent of interfering with that parent’s custodial rights.

When this happens, the parent who abducted the child often loses custody, especially if they took the child over state lines or to another country, or if they caused the child psychological or physical harm.

However, if the victim keeps the child away from the other parent in order to protect them self or the child from abuse, the court may not consider it a crime or hold it against them in custody decisions.

Disobeying court orders

Custody orders — often issued in the form of a parenting plan and a parenting time schedule — are legal mandates that both parents must follow. Depending on the number and severity of the violations, disobeying court orders can result in loss of custody and even criminal charges.

For example, repeatedly being very late to drop off the child is not only disobeying court orders, it can be considered custodial interference or parental kidnapping, which are crimes.

Violations prevent effective co-parenting and can negatively impact the child, so courts take them seriously and often limit the custody of the violating parent.

Disobeying child support orders, however, is typically not grounds for losing custody. A parent who fails to pay child support may face civil or criminal charges, but courts do not take away their parenting time. Additionally, the other must still follow the court orders, including the parenting schedule.

Interfering in the child’s relationship with the other parent

Family courts emphasize the importance of children having ongoing, healthy relationships with both parents. This is why joint custody is the most common arrangement. It’s also why a parent who tries to minimize the other parent’s role in the child’s life without a reasonable cause (e.g., protecting the child’s safety) may lose custody.

In addition to preventing the child from seeing the other parent, interfering with the child’s relationship with the other parent includes badmouthing them to or in front of the child, lying about them and discouraging the child from wanting to spend time with them.

Parental alienation is a severe form of interference in which a parent deliberately manipulates their child to turn against the other parent. There are currently no state laws that specifically address parental alienation, but many child custody experts consider it abuse. Family court judges often rule against the alienating parent and may order individual or family counseling.

Lying to the court

Lying in court paperwork or to the judge can also impact custody. While lying to the court (perjury) is a crime, family courts rarely pursue charges against a parent for lying. Instead, judges consider the dishonesty evidence that the parent won’t support the child’s relationship with the other parent or co-parent effectively. In these situations, judges often rule in favor of the other parent.

In particular, courts do not look favorably on parents who lie about child abuse or domestic violence. Many states, including California, Florida and New York, have laws that empower judges to restrict custody for a parent who knowingly makes false abuse allegations.

Generally putting the child at risk

Other behaviors and parenting issues that put the child’s physical and emotional well-being at risk can also cause a parent to lose custody.

Convictions for crimes or evidence of criminal activity, especially if the crimes are violent or if the victim was a child, typically cause a parent to lose custody.

When evaluating possible risks to children, courts also consider who lives in each parent’s home and who spends time around the child. For example, if a parent’s romantic partner has a criminal record or abuses drugs, judges often consider this a risk to the child and limit that parent’s custody.

Irresponsible parenting — e.g., having lax rules, encouraging reckless behavior, not monitoring media content — can also be used as evidence that a parent isn’t adequately caring for their child. If the irresponsible parent puts the child at significant physical, emotional or psychological risk, courts may limit their custody and order them to complete parenting classes.

Unemployment in and of itself will not cause a parent to lose custody. However, if a parent is unable to financially care for their child and issues of neglect arise, a judge may award custody to the more financially-stable parent. A parent who pays child support must still make payments if they lose their job, but they can ask the court to modify their child support order when they have an involuntary job loss.

Child Custody Evaluations

When the child’s safety is a concern, disputed cases typically include a custody evaluation, in which a court-ordered expert (often a mental health professional) evaluates parents’ ability to adequately care for their child.

The evaluator reviews the family’s records and interviews the parents. Often, they also interview the child and others who know the family. The evaluator writes a report for the judge that summarizes everything and makes custody recommendations. Judges don’t always order what the evaluator recommends, but they typically give the reports great weight.

Either parent can request an evaluation, and judges often order them of their own accord when they need more information. In many courts, custody evaluations are automatic if child abuse is alleged or suspected. Courts may also appoint a guardian ad litem to investigate the family and represent the child’s best interests in court.

Modifying orders

Either parent can ask the court to modify existing custody orders and request sole custody. If the child is in immediate physical danger, courts can issue an emergency order to protect them from the unsafe parent.

Remember that family courts don’t take what parents say at face value — they require proof (evidence) of every claim made in court paperwork and proceedings. In addition to reports from custody evaluators, common custody evidence includes photos, emails, text messages, social media posts, family calendars and official records (e.g., medical, school, criminal, child protective services).

Speak With Our Child Custody Attorneys In Scottsdale

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Our child custody and guardianship attorneys in Phoenix and Scottsdale will advance your case with concern and personal attention and always have you and your children’s best interest in mind when offering legal solutions.

We are experienced family law attorneys and will work with you to obtain the best possible outcome in your situation. We shall represent you fully, so you can get on with your life. Call today for an initial consultation! 480-744-7711 or [email protected]

Child Custody, Child Custody & Parenting Time

Mother's Rights

Regular Post

Written by Canterbury Law Group

7 September 2023

Senior Citizens & Bankruptcy

Bankruptcy is not always a good option for senior citizens who are having financial difficulties.

Older Americans filing for bankruptcy are not unusual when inflation and health care costs are rising. Furthermore, even though seniors have some benefits over other debtors, filing for bankruptcy is not the best option for people who stand to lose a lot of property. Learn more about other typical problems that senior citizens face when filing for bankruptcy by reading on.

One simple method to eliminate debt and increase the amount of money available to pay monthly bills is to file for bankruptcy. Still, a lot of seniors don’t feel comfortable declaring bankruptcy, and it’s not always a good idea or even necessary.

For seniors, filing for bankruptcy is questionable in the following two scenarios:

There is nothing that a creditor can seize from you. The items required to keep a house, like furniture, a small car, Social Security money, and numerous retirement accounts, cannot be taken by creditors. Since these items comprise the entirety of what many seniors own, many of them are “judgment proof,” meaning that declaring bankruptcy is not required. Nevertheless, some impervious to judgment will file to block creditor calls and get rid of the anxiety associated with losing money from a bank account. (See Also: What Is a Levy on a Bank Account?)
You are too wealthy to gain anything from filing for bankruptcy. In situations where your assets and earnings aren’t shielded from creditors, declaring bankruptcy might not be the best course of action. It’s likely that you would forfeit the property in Chapter 7. Because you have to pay for any property that you are not entitled to protect (but can keep), you would have to make a large Chapter 13 repayment plan payment in Chapter 13.

Discover the benefits and drawbacks of declaring bankruptcy for your financial situation.

Choosing the Right Time for a Senior to File for Bankruptcy
Bankruptcy isn’t always required or even advantageous, but for some seniors, it can be effective. Consider the following questions for yourself:

Do you have the kind of debt that Chapter 7 allows you to discharge?
Would you like a Chapter 13 repayment plan to help you catch up on unpaid mortgage or auto loans?
Can you protect all or most of your property with an exemption?
Will you be able to pay off enough debt to justify filing if you have to give up (or pay for) some property?
Will you have to pay on a monthly basis under Chapter 13 or is your income low enough to pass the Chapter 7 means test?
Other matters that seniors should contemplate are as follows:

Paying off credit card debt and medical debt. These are the two categories of debt that are most easily discharged in bankruptcy. Actually, qualifying debt can be eliminated in a matter of months by filing for Chapter 7 bankruptcy. But keep in mind that the creditor probably won’t be able to collect these bills anyway if you’re judgment proof.

Keeping your home’s equity safe can be difficult. Significant equity is held by many seniors in their homes. A certain amount of equity is protected by the homestead exemption, though the exact amount varies based on state laws. In order to settle debts with creditors, the trustee in Chapter 7 will seize nonexempt property, including home equity. (See the Homestead Exemption in Bankruptcy for further information.)

Safeguarding retirement funds. Nearly all tax-exempt retirement accounts, such as profit-sharing, 403(b)s, defined-benefit plans, and 401(k)s, are exempt in bankruptcy under federal bankruptcy law. To a certain extent, IRAs and Roth IRAs are also protected. You should consult a bankruptcy lawyer to confirm whether bankruptcy protection is available for your retirement. (See Your Retirement Plan in Bankruptcy for more information, including the current IRA limits.)

Safeguarding Social Security income. Your Social Security benefits are exempt (you can keep them) in bankruptcy, but only if the money stays in a different account. Your creditors cannot seize your benefits outside of bankruptcy. They become unprotected once they are mixed in with other money. Also, when completing the bankruptcy means test, your Social Security benefits are not taken into account as income for qualifying purposes. However, your Social Security income needs to be included in your bankruptcy budget and could still be used against you if your budget indicates that you have a sizable monthly disposable income. See Is Social Security Income Included in the Chapter 7 Means Test for additional information.

After they are taken out, retirement funds are not secured. Getting paid from your retirement account can also be difficult. When you file for bankruptcy, your retirement withdrawals are considered income for qualifying purposes and like cash for exemption purposes (most states don’t offer a significant cash exemption). A creditor may obtain these funds through a bank levy since, once withdrawn, they are no longer protected. Additionally, Social Security funds lose their protected status if they are combined with withdrawn retirement funds in the same account. Once more, keeping Social Security money in a different account is the best course of action.)

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Regular Post

Written by Canterbury Law Group

30 August 2023

Understanding Bankruptcy Reorganization Plans

Creditor Objection to Chapter 13 Plan

Discover the four chapters that enable debt restructuring for bankruptcy filers.

There are two bankruptcy systems available to assist people and businesses with astronomical debt. The first option, Chapter 7 liquidation bankruptcy, is for people who lack the resources to pay their debts. The second system offers a way for people and companies with some disposable income—but not enough—to manageably restructure their debt. In essence, a reorganization plan is the budget that a debtor who files for bankruptcy (debtor) proposes to use to pay creditors.

The Four Reorganization Bankruptcy Chapters Depending on the specific situation, debtors may elect to reorganize under Chapter 9, 11, 12, or 13. According to filing frequency, a summary of each is displayed.

Individuals and Couples in Chapter 13

This chapter permits individuals who are single or married to contribute their discretionary income—the sum left over after covering living expenses—to a plan for a period of three to five years, but not businesses other than sole proprietorships.

Your plan will last 60 months if your family’s income is higher than the median income for your state. When income is below the median, 36 payments are necessary; however, if necessary, you can propose a plan that spreads out the required payments over 60 months. (Click on Means Testing Information on the U.S. Trustee website to view the median income for your state.)

What Happens to Debts During the Plan Period?

Some debts are given a higher priority under bankruptcy law, and the debtor is required to pay them in full over the course of a three- to five-year plan. These are some examples of priority claims:

Recent income tax debts, past-due alimony and child support obligations, as well as overdue payments on secured debts like house notes (you don’t have to pay off the entire mortgage within the plan, but you must make progress toward it).

The majority of your other debts, including credit cards and medical expenses, will be classified as general unsecured debts and won’t necessarily receive any payment. Only if you have extra cash after paying all of your higher priority claims will they receive something. Even then, the unpaid claims may only receive pennies on the dollar. At the conclusion of the case, the outstanding debt is discharged.

Making a Secured Debt More Affordable Through the Plan

The ability of a Chapter 13 plan to cram down (reduce) a secured debt that isn’t a mortgage on your home or a recently bought car is another intriguing feature. You can propose to pay just the asset’s value plus interest that is one or two points above prime if the collateral (the asset used to secure the debt) is worth less than what you owe. This can help you save thousands of dollars if you have high-interest loans that are in default.

Regrettably, not all secured loans are crammed down. It is not available for home mortgages or auto loans that are less than 2.5 years old at the time your case is filed. Additionally, for high-value property like vacation rentals, you must be able to pay off the entire cram down sum over the course of the plan, which is something many people are unable to do.

Although you cannot cram down your home mortgage, you may be able to remove a junior mortgage through a Chapter 13 plan if the value of your property has fallen too low to pay off your primary mortgage. (This was frequently used during the housing crisis; however, due to rising property values, its availability is constrained.)

Chapter 11: Organizations and People

The best-known benefit of Chapter 11 bankruptcy is that it helps keep big businesses from going out of business. Due to the costs associated with filing a Chapter 11 case, small businesses use it less frequently, and occasionally, individuals whose debt balances exceed the Chapter 13 debt limitations will do so.

In many Chapter 11 cases, creditors actively collaborate with the debtor to assess the debtor’s financial situation and choose the most effective strategy for paying off the debt. Renegotiating loan terms is just one aspect of this collaboration, though it is a significant part of the overall strategy.

The parties carefully examine a number of aspects of the business during the initial months of a Chapter 11 case. Choosing to carry out one or more of the following actions is possible:

Change the leadership, sell off underperforming assets, or restructure the business to be more productive.
The debtor then suggests a strategy for repaying its obligations. Not only must the bankruptcy court approve a Chapter 11 plan, but also the creditors who are owed the most money. A creditor (or the trustee, if one has been appointed) may offer a plan that will be put to a vote by the creditor body in the absence of a confirmable plan from the debtor. Once a plan is approved, the debtor can take years to implement its provisions.

Operation of Farms and Fishing in Chapter 12

You’ll probably decide to file for Chapter 12 bankruptcy if farming or fishing is your main business. While Chapter 12 bankruptcy offers more flexibility due to its recognition of the seasonal nature of the farming and fishing industries, Chapter 13 bankruptcy cases follow a similar procedural framework.

A plan lasting between three and five years must be proposed by the Chapter 12 debtor within 90 days of filing the case. The Chapter 12 plan may permit one-time payments during certain seasons as opposed to the monthly payments mandated by Chapter 13 bankruptcy. Almost any secured debt, including mortgages on homes and farmland, may be crammed down under the plan, and the modified secured debt payments may go beyond the five-year plan limit.

Chapter 9: Local Government

Municipalities and other governmental entities like utilities and taxing districts are the only ones permitted to file for bankruptcy under Chapter 9. Chapter 9 bankruptcy plans and the procedure for approving them are comparable to Chapter 11 plans. In a Chapter 9 case, creditors cannot make a plan proposal; however, both taxpayers and creditors may object to a plan.

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Regular Post

Written by Canterbury Law Group

30 August 2023

How Domestic Violence Affects Child Custody in Arizona

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In this article, domestic violence will be defined and its implications for child custody in Arizona will be discussed. After reading this article, if you still have any questions, seek guidance from a family law attorney.

Overview of Domestic Violence

Unless they have the scars and marks to prove it, victims of domestic violence frequently don’t think they are actually victims. They might not use the services offered to assist them. However, according to Arizonan law, a number of actions qualify as domestic violence, including:

Making family or household members fearful they will suffer immediate physical harm; sexually assaulting or seriously injuring a family or household member; attempting to sexually assault or seriously injure a family or household member; and engaging in a pattern of abusive behaviors severe enough to allow a court to issue a protective order for the victimized parent or child.
Physical assault, threats, harassment, intimidation, stalking, wrongful detention, trespassing, property damage, kidnapping, and secretly photographing and watching victims without their consent are just a few examples of behaviors that fall under the definition of domestic violence. Abuse can be verbal, written, telephonic, electronic (such as online), or personal.

The law focuses on protecting members of the family and household. They consist of:

Former and current spouses

People who currently are or previously were in a romantic or sexual relationship, people who currently are or previously were living together, people who have a child together, people who are related by blood or marriage, people who have children together, people who have children together, and people who have a child together.
What constitutes a romantic or sexual relationship is frequently questioned. Judges consider four factors in order to make their decision:

How the relationship is structured

the duration of the relationship, the frequency of the partners’ interactions, and the amount of time that has passed since the end of the relationship.
You can go to court and request a domestic abuse protection order if you’re a victim of domestic abuse. See this information from the Arizona Judicial Branch, which includes the forms you must complete, to find out how.

Several services are offered by Community Resources Arizona to domestic violence victims. The non-profit A New Leaf offers a thorough directory of businesses that provide direct services like shelter-based housing, counseling, and case management. Additional information and resources for victims are listed by the Arizona Coalition to End Sexual and Domestic Violence, a non-profit organization.

The Arizona Department of Health Services has written a fact sheet with hotline numbers for those who have experienced abuse, and the Arizona Department of Economic Security has a Domestic Violence Program that can help victims.

The National Domestic Violence Hotline can be reached by victims by dialing 1-800-799-7233. It is accessible every day of the week, round-the-clock.

Domestic Violence and Child Care

Legal and physical custody are the two types. The location where a child resides and receives essential daily care, such as feeding and bathing, is known as physical custody. Legal concerns a parent’s authority to decide critically important matters for a child, such as their health and education.

To decide who should have custody of a child and what is in the child’s best interests, judges must weigh at least eleven different factors. Child Custody in Arizona: The Best Interests of the Child provides more details on the general criteria that courts use to decide these cases. Domestic violence is directly involved in two of the factors:

if there has ever been domestic violence or child abuse, and if either parent has ever been found guilty of reporting child abuse or neglect without having done so.
Evidence of domestic violence is considered to be against the child’s best interests by Arizona’s courts. As a result, it is less likely that a parent who has used domestic violence will be granted custody. In fact, parents cannot share joint legal custody if domestic violence has occurred.

Judges are required to give the victim’s and the child’s safety top priority in the case and to take the offender’s prior history of making threats against or harming other people into account. They must first determine whether it is more likely than not that abuse ever took place. In doing so, courts look at:

Decisions made by other courts

Reports from the police, the medical community, child protective services, domestic violence shelters, schools, and witness testimony.
A “rebuttable presumption” (a legal presumption) that awarding custody to the abuser is not in the child’s best interests must be applied by the court if it determines after reviewing the evidence that one parent used domestic violence against the other parent. The judge must consider all of the following elements before concluding that the offender has disproved that presumption:

whether or not the offender demonstrated that obtaining sole or shared custody is in the child’s best interests
whether the offender successfully completed court-ordered alcohol or drug abuse counseling, or, in situations where drugs are a problem, whether the perpetrator completed a batterer’s prevention program.

Whether the offender is no longer under a domestic violence protective order, whether the offender has committed additional acts of domestic violence against anyone else, and whether the offender successfully completed parenting classes that the court ordered in cases where the offender is on parole, probation, or community supervision.

Visitation Impact

Protecting the victimized parent or child from potential harm is the court’s top priority if the judge finds that domestic violence occurred. Until the abusive parent persuades the judge that parenting time won’t put the child in danger or stunt their emotional growth, they cannot be granted “parenting time” (Arizona’s term for visitation). Even if the court grants the request, it must still ensure the safety of the child and the other parent and may:

order that parenting time exchanges take place in a secure area (for instance, the lobby of a police station).
give a state agency the authority to supervise parenting time, with the provision that another family member or household member may supervise parenting time in certain circumstances.
order the abusive parent to refrain from using drugs or drinking alcohol either during parenting time or for the 24 hours prior to it. Establish any other requirements required to ensure everyone’s safety, such as requiring the abusive parent to pay a bond to ensure the child’s safe return, maintaining the privacy of the child’s and the other parent’s addresses, making the abusive parent pay any expenses related to parenting time, and so on.

Parental Rights Are Terminated

A relative, foster parent, doctor, licensed welfare agency, or the Arizona Department of Economic Security may file a petition asking the court to remove a parent’s parental rights in extremely serious situations where there is a pattern and history of child abuse. When parental rights are terminated, a parent loses all claim to the child’s physical and legal custody.

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Contact Canterbury Law Group today if you need an experienced child custody lawyer or guardianship lawyer in Phoenix or Scottsdale, Arizona to help with your case. Our experienced family law attorneys will work with you to achieve the best outcome for your situation. Call today for an initial consultation! 480-744-7711

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Written by Canterbury Law Group

21 August 2023

How Alcohol and Drug Use Affects Custody Decisions

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Find out when parents may lose custody or visitation rights because of their substance abuse.

If you believe that your child’s other parent is abusing alcohol or drugs—or you’re the one being accused of substance abuse—you’ll want to know how that could affect custody and visitation. Moderate drinking usually doesn’t get in the way of a parent’s ability to take good care of a child. But a parent’s habitual, excessive drinking or other substance abuse can pose a danger to children. Learn how judges deal with these issues in custody cases, and how to get a change in custody or visitation because of substance abuse or recovery.

When Do Courts Get Involved in Child Custody?

Courts play a role in decisions about child custody and visitation (sometimes called parenting time) in various situations, including when:

parents are getting divorced
unmarried parents have a legal dispute about custody of their children
divorced or unmarried parents request a change in the current custody orders, or
child protective services or a similar agency files a petition with the juvenile court (in what’s usually called a “dependency” case) based on allegations of child abuse or neglect.

This article will focus on the role of substance abuse in custody disputes between parents in family courts, rather than dependency cases in juvenile court (which have their own procedures and rules).

Overview of Child Custody

The most important thing to understand about custody cases is all states require judges to make their decisions based on the children’s best interests. It’s also important to understand the difference between legal and physical custody. Legal custody refers to the parents’ authority to make important decisions about their children’s care and upbringing, such as medical care and education. Physical custody refers to where the children will live. Within each of those categories, one parent may have sole custody, or both parents may have joint custody.

Traditionally, one parent would have sole physical (and often legal) of the children after divorce, while the other parent would have visitation with the kids. These days, it’s more common for judges to award joint legal custody and at least some form of joint physical custody (often called shared parenting time). State laws and courts recognize that it’s usually in the best interests of children to have strong relationships with both parents after divorce, and for both parents to be involved in their children’s lives—unless there’s a reason that would be harmful to the kids.

If there’s convincing evidence that a parent has a habit of drinking excessively, driving under the influence, or using illegal drugs, the judge will almost certainly take that into account when deciding which parenting arrangements would be best for the children.

When Do Judges Consider Substance Abuse in Custody Decisions?

State laws typically spell out a long list of factors that judges must consider when they’re deciding on custody arrangements that would be in the children’s best interests. In some states, the list specifically includes consideration of a parent’s substance abuse. For example:

California law requires judges consider either parent’s “habitual or continual abuse” of alcohol or certain prescribed drugs, or the habitual or continual illegal use of certain drugs. And if a judge awards sole custody or unsupervised visitation to a parent despite allegations of substance abuse, the judge must explain the reasons for that decision. (Cal. Fam. Code § 3011 (2023).)
Arizona law requires judges to presume that it’s not in the child’s best interests for a parent with a recent history of substance abuse to have sole or joint legal decision-making (legal custody). The presumption applies when the judge has found that the parent has abused drugs or alcohol, or has been convicted of a drug offense or a DUI, within 12 months before a custody request was filed. But a judge may decide that the parent has overcome the legal presumption based on evidence such as negative drug tests for the previous five years. (Ariz. Rev. Stat. § 25-403.04 (2023).)

But even when laws on child custody don’t specifically mention substance abuse, states typically authorize judges to consider any circumstances that are relevant to the child’s best interests. Most judges would probably conclude that it’s not good for a child’s physical safety and emotional well-being to be in the care of a parent whose behavior and decision-making are affected by a substance abuse disorder.

So if there’s convincing evidence that a parent has a habit of drinking excessively, driving under the influence, or using illegal drugs, the judge will almost certainly take that into account when deciding which parenting arrangements would be best for the children. But that doesn’t necessarily mean the judge will strip that parent from any parenting time or decision-making authority. Instead, judges will usually try to find ways to protect the children while visiting with the substance-abusing parent (more on that below).

Can Parents Lose Custody for Drug Use or Alcoholism?

Not only may a parent’s substance abuse factor into initial custody decisions, but excessive drinking or drug use could also play a role after the divorce or other custody orders are in place. If a parent with sole or shared custody (or even just visitation rights) begins to show worrying signs of substance abuse that could endanger the child, the other parent may go back to court to request a custody modification.

The specific requirements vary from state to state. In general, however, if you want to change the current custody orders, you’ll have to show that:

there’s been a substantial change in circumstances, and
the modification you’re requesting will be in the child’s best interests.

If you suspect that your co-parent’s alcohol or drug use has changed significantly, or if you’ve only recently discovered substance abuse that was previously hidden, you’ll need evidence to support those suspicions (more on that below), as well as evidence of the potential harm to your child. If that evidence convinces the judge that a modification is warranted, the judge could change where the child lives, limit the substance-abusing parent’s time with the children, or place restrictions on visitation. A parent might also lose sole or shared legal custody, if the substance abuse is serious enough to impair that parent’s decision-making abilities.

Substance abuse may also lead to reports of child abuse or neglect. If a juvenile court removes a child from the parent’s custody in dependency proceedings, that parent will generally have a certain period of time to get treatment and take other actions (such as regular drug testing or alcohol monitoring) to convince the judge that it’s safe to return the child to that parent’s care. But if the judge finds that those “reunification” efforts have failed, the parent could not only lose custody—but could be stripped of all parental rights over the child.

Can You Lose Custody Because of a DUI?

If you’ve been convicted for driving under the influence of alcohol or drugs, that could be used against you as evidence of a substance abuse problem that might endanger your children. It’s not very likely that one simple DUI, on its own, would lead you to lose custody or visitation rights. But some aggravating factors could lead to that result, including when you:

had a child in the car while you driving under the influence
had a very high blood alcohol concentration (BAC), or
have had repeated DUI convictions.

Visitation Conditions for Parents With Substance Abuse Problems

Because of the recognition that children are usually better off when they have continuing relationships with both of their parents, judges very rarely cut off all contact between a parent and child just because of the parent’s substance abuse. Even if there’s convincing evidence that it’s potentially dangerous for the child to stay overnight with that parent, a judge will typically allow visitation with restrictions or conditions, such as:

supervised visitation, often with a social worker or other reliable monitor in the room at all times
a requirement that the parent participate in an appropriate type of treatment or rehabilitation, including AA or NA, and
regular drug testing or alcohol monitoring.

Often, these conditions will be for a certain period of time and may be lifted if the parent shows success at treatment and evidence of ongoing sobriety.

If you’ve lost custody or visitation rights because of substance abuse, successful rehab treatment could help you regain those rights in the long run.

How Does Drug or Alcohol Rehabilitation Affect Custody?

If you have custody of your children and decide to go into a residential treatment program, you’ll obviously have to arrange for the children’s care while you’re gone. You might be able to make temporary, informal arrangements, as long as you and your co parent can agree (and there isn’t an active court case dealing with custody). Otherwise, however, you run the risk of losing custody, at least temporarily.

That said, if you’ve lost custody or visitation rights because of substance abuse, successful rehab treatment could help you regain those rights in the long run. Just as your co-parent may ask a judge to change custody because of your alcoholism or drug use, you may also go back to court and request more parenting time based on evidence that you’re in stable recovery and are ready to take good care of your children.

Does Recreational Drug Use Affect Child Custody?

Because judges may consider any factors that they believe are relevant to the child’s best interests, they have a lot of leeway when deciding whether a parent’s recreational drug use should affect custody and parenting time. Even if a parent isn’t addicted, some judges may believe any use of illegal drugs is evidence that the parent is unfit—particularly if the parent is convicted of illegal drug possession.

But what about legal drugs? If you live in one of the states that have legalized recreational cannabis, could your casual use of marijuana count against you in a custody dispute? It depends, not only on the custody laws in your state but also on the judge and the particular circumstances in your case. For example, a judge is likely to conclude that you’ve been endangering your child if you:

leave cannabis gummies in a place where the child could find and eat them
expose the child to second-hand marijuana smoke, or
show up in your car, obviously high, to pick up your child for parenting time.

Legal medical cannabis use won’t usually affect custody rights as long as you have a documented medical need and you use it responsibly, in a way that doesn’t put your child in harm’s way.

How to Prove Substance Abuse in Custody Cases

If you want to limit your ex’s parenting time because of alcohol or drug abuse, you’ll need evidence to support your claims. This evidence could include:

records of run-ins with law enforcement, including convictions for disorderly conduct, driving under the influence, or illegal drug possession or use
testimony from witnesses who’ve observed the parent’s drinking problem or drug use
employment records showing negative work effects of substance abuse
medical records (when available, given patient privacy protections)
social media posts that reveal excessive drinking or drug use
repeated, incoherent texts or voicemails indicating that your coparent is often drunk or high
reports from custody evaluations on the effects of a parent’s drinking or drug use, and
results of drug tests (more below on when testing may be required).

When May Judges Require Drug Testing in Custody Cases?

Some states allow judges to order drug testing based on one parent’s accusation that the other parent is abusing drugs or alcohol. But in other states, you’ll need more than a bare accusation to force testing. For instance:

Oklahoma law allows judges to order blood, saliva, or urine testing in any custody or visitation case. The law doesn’t require any evidence of substance abuse before judges may require parents to undergo these tests. (43 Okla. Stat. § 110.2 (2023).)
In California, a judge may order anyone seeking custody or visitation to undergo the “least intrusive method” of alcohol or drug testing, but only if the judge has found (based on a preponderance of the evidence) that the parent has engaged in “habitual, frequent, or continual” use of alcohol or illegal drugs. However, the law makes clear that a positive test result, by itself, won’t be a reason to deny or take away that custody. (Cal. Fam. Code § 3041.5 (2023).)
In New York, as in many states, the law allows judges to order physical or mental examinations whenever there’s a dispute in a legal case about someone’s physical or mental condition. So a judge may order testing when, for instance, a parent has admitted past drug use but claims to be clean and sober now. However, New York courts have held that judges may not require a parent to submit to drug and alcohol testing “virtually at the whim” of the other parent. (N.Y. C.P.L.R. § 3121; Burgel v. Burgel, 141 A.D.2d 215 (N.Y. Sup. Ct. App. Div. 1988), Johnson v. Johnson, 303 A.D.2d 641 (N.Y. Sup. Ct. App. Div. 2003).)

Alcohol and Drug Testing to Keep or Regain Custody Rights

If you’re the parent who’s been accused of substance abuse in a custody dispute, you may voluntarily take a drug test to disprove those claims, even if a judge hasn’t required you to do so.

And if you’ve already lost custody or visitation rights because of your alcoholism or drug use, you may submit to regular alcohol monitoring or drug tests to show that you’ve been successful in recovery. In that situation, it’s usually up to the judge to decide how long you must be clean and sober before you can have unsupervised visitation or increased parenting time.

How Can Parenting Agreements Address Drug or Alcohol Use?

Whenever you have a custody dispute, you always have the option of reaching a settlement agreement, rather than going to trial and having a judge decide for you. If you have any concerns about your co-parent’s drinking or drug use, you may include provisions in your settlement agreement to address those concerns, such as a “sobriety clause” that requires both parents to refrain from using alcohol or recreational drugs 24 hours before and during parenting time. Once a judge has approved your agreement, it’s typically made part of an official court order. then, if the other parent violates any of the provisions, you may go back to court to enforce the order.

Getting Help With Custody Disputes Over Substance Abuse

Most parents are able to work out parenting agreements, either on their own or with the help of custody mediation. But you should speak with a lawyer if you’re concerned about your child’s safety due to your co-parent’s drinking or drug use—or if you’re the one at risk of losing custody or parenting time due to allegations of substance abuse. These disputes can be difficult, emotionally and legally. An experienced child custody lawyer can explain how the law in your state applies to your situation, and can help you gather the kind of evidence you’ll need to protect your children and your parental rights.

Source

https://www.divorcenet.com/resources/how-alcohol-and-drug-use-affects-custody-decisions.html

*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs. 480-744-7711 or [email protected]

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Written by Canterbury Law Group

21 August 2023

Bankruptcy Exemptions:

How Do Bankruptcy Exemptions Work

Exemptions from bankruptcy play an important role in both Chapter 7 and Chapter 13 bankruptcy. Exemptions are used in Chapter 7 bankruptcy to determine how much of your property you get to keep. Exemptions in Chapter 13 bankruptcy help you keep your plan payments modest. Learn more about bankruptcy exemptions and how they work by reading on.

What Are the Different Types of Bankruptcy Exemptions?

Exemptions allow you to keep a specific amount of assets, such as a cheap car, professional tools, clothing, and a retirement account, safe in bankruptcy. You don’t have to worry about the bankruptcy trustee appointed to your case taking an asset and selling it for the benefit of your creditors if you can exclude it.

Many exclusions cover specific property kinds up to a certain dollar value, such as a car or furnishings. An exemption can sometimes protect the asset’s total worth. Some exemptions, known as “wildcard exemptions,” can be used on any of your properties.

Is it okay if I keep my baseball cards? Jewelry? Pets?

The goal of bankruptcy is to give you a fresh start, not to take away all of your possessions. You’ll probably be able to protect other items as well, such as religious literature, a seat in a building of worship, or a burial plot, in addition to the fundamentals. Chickens and feed are even exempt in some states. However, you should not make the mistake of assuming that everything will be well.

Items of high value. There are no exemptions for boats, collections, pricey artwork, or holiday homes. Instead of filing for bankruptcy, owners with such valuable assets often sell the property and pay off their debts.
Jewelry. Many states provide protection for wedding rings up to a certain value. Don’t expect to preserve your Rolex, diamond necklace, or antique broach collection, though.
Pets. The dog or cat you rescued from the shelter is unlikely to fall into the trustee’s hands. Why? It’s not that you’ll have a specific exemption to protect it; rather, the trustee would have to pay more to sell it than it’s worth in most circumstances. However, if you own a valuable show dog or a racehorse with high breeding costs, you may be forced to sell it or pay for it in bankruptcy.

Exemptions: What Are They and How Do They Work?

Whether you’re filing a Chapter 7 or Chapter 13 bankruptcy, exemptions play a significant role.

Bankruptcy under Chapter 7

A liquidation bankruptcy is one in which the appointed trustee sells your nonexempt assets to satisfy your creditors. Because the bankruptcy trustee cannot sell exempt property, exemptions assist you protect your assets in Chapter 7 bankruptcy. If your state offers a $5,000 motor vehicle exemption and you only own one automobile worth $4,000, for example, you can keep it. See Exemptions in Chapter 7 Bankruptcy for more details.

Bankruptcy under Chapter 13

You can keep all of your property and rearrange your debts with a Chapter 13 bankruptcy (which can mean paying less on some of them). The amount you must pay specific creditors, however, is still determined by how much property you can exclude. Unsecured creditors who are not priority (such as credit card companies) must be paid an amount equal to your nonexempt assets. Exemptions assist keep your Chapter 13 bankruptcy plan payments modest by lowering the amount you must pay creditors. See Exemptions in Chapter 13 Bankruptcy for more details.

Bankruptcy Exemptions at the State and Federal Level

There are bankruptcy exemptions in each state. A series of exemptions is also provided by federal law. (See The Federal Bankruptcy Exemptions for further information.) Some states force you to use their exemptions, while others allow you to choose between their exemptions and the federal system (you cannot mix and match the two).

The state exemption rules you’ll be able to use will be determined by where you lived in the previous two years (called the “domicile requirements.”). Read Which Exemptions Can You Use In Bankruptcy? for more information on the distinctions between state and federal exemptions and domicile requirements.

Nonbankruptcy Exemptions in the United States

In addition to state and federal bankruptcy exemptions, there are a number of federal nonbankruptcy exemptions. These exemptions work in a similar way to bankruptcy exemptions in terms of preserving your assets. Nonbankruptcy exemptions from the federal government are only available if you use your state’s exemptions (you cannot combine the federal bankruptcy and nonbankruptcy exemptions). You can use nonbankruptcy exemptions in addition to state exemptions if you are using state exemptions. See The Federal Nonbankruptcy Exemptions for further details.

If You File for Bankruptcy, What Can You Keep?

The purpose of bankruptcy isn’t to strip you of all of your belongings—it’s to give you a fresh start. Most people can keep the basic items needed to work and live.

However, if you’re considering filing for bankruptcy, you might be wondering, “Can I keep my baseball cards? Jewelry? Pets? The simple answer is that it depends.

You’ll likely be able to protect other things, like religious texts, a seat in a house of worship, or a burial plot. Some states even exempt chickens and feed. But you shouldn’t assume that everything will be safe.

Luxury items. Exemptions for yachts, collections, expensive artwork, and vacation homes don’t exist. Owners of such valuable assets often sell the property and pay off debt instead of filing for bankruptcy.
Jewelry. Many states protect wedding rings up to a particular dollar amount. However, don’t count on keeping a Rolex, diamond necklace, or antique broach collection.
Pets. The dog or cat you rescued from the shelter is probably safe from the trustee’s clutches. Why? It’s not that you’ll have a specific exemption to protect it, but rather that in most cases, it would cost more for the trustee to sell it than what it would be worth. If, however, you own an expensive show dog or a racehorse that fetches sizeable breeding fees, you might have to turn it over—or pay for it—in bankruptcy.

Find out what you can protect by reviewing your state’s exemptions.

How Do Bankruptcy Exemptions Work?

Exemptions always protect the same amount of property regardless of the chapter filed. However, what happens to “nonexempt” property you can’t protect with a bankruptcy exemption will depend on whether you file for Chapter 7 or Chapter 13 bankruptcy.

Chapter 7 Bankruptcy and Exempt Assets

Chapter 7 bankruptcy is a liquidation bankruptcy where the appointed trustee sells your nonexempt assets to pay your creditors. Exemptions help you protect your assets in Chapter 7 bankruptcy because the bankruptcy trustee can’t sell exempt property.

For example, suppose your state has a $5,000 motor vehicle exemption, and you have one car worth $4,000. In that case, the exemption will cover all of the car’s equity, and you can keep it. For more information about keeping a car in Chapter 7 and other property, see Exemptions in Chapter 7 Bankruptcy.

Chapter 13 Bankruptcy and Exempt Assets

A Chapter 13 bankruptcy allows you to keep all your property while paying some or all of your debt in a three- to five-year Chapter 13 repayment plan. But this benefit comes at a cost. You’ll have to pay nonexempt creditors for the property you can’t protect with an exemption.

Nonpriority unsecured creditors, such as credit card issuers, must receive at least as much as the value of the property you can’t exempt. So in Chapter 13 bankruptcy, being able to exempt all or most of your property helps keep your monthly plan payment low.

Learn more about exemptions in Chapter 13 bankruptcy.

State and Federal Bankruptcy Exemptions

Each state has a set of bankruptcy exemptions, and federal law provides a federal bankruptcy exemption set, too. Some states require you to use the state exemptions, while others allow you to choose the state or the federal bankruptcy exemption set. But you must choose one or the other–you can’t mix and match exemptions from two sets.

The state’s exemption laws you’ll qualify to use will depend on where you lived during the last two years, called the “domicile requirements.” For more information about the differences between state and federal exemptions and domicile requirements, read Which Exemptions Can You Use In Bankruptcy?

Federal Nonbankruptcy Exemptions

A second set of federal exemptions called “federal nonbankruptcy exemptions” can be used along with your state’s exemptions. For more information, see The Federal Nonbankruptcy Exemptions.

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Regular Post

Written by Canterbury Law Group

14 August 2023

Child Custody Mediation: How It Works

Learn the basics of this dispute resolution tool for divorcing spouses and get pointers on approaching your own child custody mediation sessions.

Divorce is an inherently painful process that can be all the more challenging when children are involved. Fighting over child custody issues in court can intensify the pain for all those involved—not to mention the expense.

Fortunately, disagreeing couples can get help working toward solutions for their family somewhere other than court. Child custody mediation exists precisely so that parents who just can’t seem to agree don’t have to take on the financial and emotional costs of court battles.

What Is Child Custody Mediation?

Mediation is a method of “alternative dispute resolution” (ADR) that has become a mainstay in the world of divorce. When it comes to child custody, mediation is designed to help divorcing or unmarried parents reach an agreement on legal and physical custody of their children without the pain and expense of a traditional court contest.

In a mediation session, spouses meet with a trained mediator, usually in an informal setting (such as the mediator’s office), or sometimes online. Think of the mediator as a guide, navigating the couple through the maze of marital issues they disagree on. (Sometimes the spouses work with a mediator and otherwise handle the case themselves; other times, they each have an attorney who might help them prepare for mediation, provide coaching for the negotiation process, and prepare or review any resulting agreement.)

Unlike a judge or arbitrator, the mediator doesn’t make decisions on the disputed matters. Rather, mediators use their knowledge and skill to try to facilitate a compromise that both spouses can live with. In divorce cases, a successful mediation will normally lead to the preparation of a written settlement agreement.

Although many issues in a divorce can be contentious, child custody and parenting time are often the most emotionally charged and difficult for families to agree on.

Child Custody Overview

Child custody isn’t the all-or-nothing proposition it’s often thought to be—one parent gets the kids, the other doesn’t, end of story. It’s well established that children fare better when both parents are an integral part of their life, and that’s the goal the courts strive for in custody cases.

At its core, child custody includes two basic concepts: legal custody and physical custody. Legal custody relates to who will make the decisions regarding the important matters in a child’s life, such as education, religious upbringing, and non-emergency medical treatment. Unless one parent is unqualified for some reason, courts prefer to have parents share legal custody.

Physical custody has to do with where a child will primarily reside. To a large degree, determining physical custody depends on where each parent lives, with the aim being to provide for an arrangement that best suits the child’s needs.

In all custody matters, doing what’s in the child’s best interest is the court’s guiding principle.

Child Custody Mediation Basics

Although many issues in a divorce can be contentious, child custody and parenting time are often the most emotionally charged and difficult for families to agree on. Child custody mediation is intended to help tone down the hostility, for the sake of both the parents and their children.

Court-Ordered vs. Private Child Custody Mediation

Child custody mediation can be either ordered by a court or private and voluntary. Court-ordered mediation is often free, low cost, or priced on a sliding scale based on the parents’ incomes. But even if a judge has ordered you to participate in custody mediation, you almost always have the option of choosing private mediation instead of the mediation program offered through the court.

If you can afford it, private mediation allows you to have more say in the process, and it tends to be more successful than court-ordered mediation (in part because of the time restrictions on most court-sponsored custody mediation). Because of that, private mediation might actually save you money because of the court costs and lawyers’ fees that come when there’s no agreement.

Child custody mediation is also typically more cost effective than going to court, because you’re paying one mediator to help you come to an agreement, rather than both of you paying hourly fees to separate attorneys. Also, you have a say in when the sessions will take place. That’s a luxury that is practically nonexistent in the court system.

Most states (and many counties) require courts to order parents to participate in mediation in any case that involves a custody dispute. So even when couples who can’t agree haven’t opted to pursue mediation before filing for divorce, they’ll usually have to attend mediation at some point. In light of this, it’s important to learn how to approach mediation.

How to Prepare for Child Custody Mediation

First and foremost, remember that custody in general, and mediation in particular, isn’t primarily about the parents. It’s about the children. You have to make a commitment to do whatever is best for them, and that starts with being prepared.

Here are some quick tips on getting ready for a mediation session:

Try to get plenty of sleep the night before. Mediation can be stressful, so be sure to take care of yourself. It’s much easier to stay calm and think clearly when you’re rested.

Resolve to keep an open mind. Remember, it’s not about getting everything you want. Your spouse may have a different perspective on what’s best for the children. Try to understand where your ex is coming from instead of immediately digging in. The mediator may also have suggestions for custody and parenting time that you haven’t thought of.
Sketch something out. Write out a proposal of what you believe would be a fair custody and parenting time arrangement. Sketching out a plan can help organize your thoughts and provide a starting point for discussion. Include a checklist so you don’t lose track of issues that are important to you. Remember to include things such as:
- how to handle transitions, meaning picking up and dropping off the children when it’s time for them to be with the other parent
- how to share the cost involved in travel if that’s a factor (such as when the parents live far away from each other)
- how to divide holidays throughout the year (for example, whether the schedule will be the same each year or will alternate)
- vacation sharing, for school breaks and summer
- how to deal with minor changes to the agreed-upon schedules, like when a child or parent is sick
- the best way for parents to communicate with each other (phone and/or email, for example), and
- anything you feel could be a potential problem, such as a parent having substance abuse issues that need to be addressed.

Keep in mind that software programs and smartphone apps can help parents coordinate all aspects of custody and parenting time, including communications.

When Custody Mediation Might Not Be Appropriate

Custody mediation is generally not appropriate in cases involving ongoing domestic violence or emotional abuse. In many states that require mediation for custody disputes, you may get out of this requirement if you’re experiencing abuse or there’s a protective order in place. Other states, like California, won’t excuse you from participating in custody mediation, but you may request special procedures to protect your safety.

As long as you have the choice to participate in mediation (or not), you should be aware that custody mediation might not be the best option in some other circumstances, such as when

there’s a history of abuse in your relationship, or the other parent bullies or dominates you
you have such a high level of conflict in your relationship that cooperation and effective communication is basically impossible, or
the other parent has an untreated substance abuse disorder.

5 Tips for Your Child Custody Mediation Sessions

Even if both spouses come with the best intentions, mediation can hit rough patches. When that happens it’s important to take a breath and refocus your energy on what’s best for the children.

Here are some more tips to achieve a successful mediation:

Don’t bring up marital issues unrelated to the children. Remember that this isn’t a general divorce mediation, so don’t muddy the waters by bringing up anything not specifically related to custody and parenting time. Reciting a laundry list of things you don’t like about the other parent is a prime example of what not to say in child custody mediation.
Be thoughtful with your language. When you reference your children, talk about “our” kids, not “my” kids. It’s more inclusive and less confrontational. And try to couch your remarks in terms of what you as parents can jointly do to make the situation as positive and painless for your children as possible.
Don’t let your emotions get the best of you. Expect that—despite everyone’s best efforts—there will be times when your discussion can become heated. Don’t use that as an excuse to unload on the other parent, which will only undo progress that’s been made up to that point. Mediators are adept at calming the waters, but if you feel your emotions are getting away from you, ask to take a short break.
Don’t subject yourself to abuse. If you choose to mediate your custody dispute despite a history of physical or emotional abuse, you might consider online mediation, mediation with separate sessions for you and the other parent, or both (meaning that you’ll meet virtually with the mediator in separate “break-out” sessions). So-called “shuttle mediation” usually costs more—because it takes more of the mediator’s time—but it can help level the playing field by offsetting the imbalance of power that frequently exists in abusive relationships. A successful outcome is worth the additional cost, which is still likely to be considerably less than heading to court. Virtual or separate mediation sessions are also useful if the degree of hostility between you and the other parent is so high that you can’t be in the same room.
Remember, you always have options. In the event mediation doesn’t work, you can still turn to the courts. Even in that case, your mediation sessions will probably have highlighted the issues you can’t agree on, which will show you what you need to focus on going forward.

Finding a Qualified Mediator

Mediation has become such a popular method of settling legal issues that there’s no shortage of qualified mediators. Your state court’s administration office may have a list of approved mediators. There are also mediation organizations that offer lists of mediators along with their training and experience.

When researching, be sure to pay particular attention to each mediator’s qualifications. You want one who’s taken mediation courses specifically geared to divorce cases, including custody and parenting time. Also, be aware that a child custody mediator doesn’t necessarily have to be a lawyer—many trained child custody mediators are licensed psychologists, marriage and family therapists, or social workers who have experience in child custody issues in their state.

Of course, firsthand knowledge and word-of-mouth referrals are always helpful. Recommendations from friends or family members who’ve been through custody mediation are often the best referrals you can find.

Source: https://www.divorcenet.com/resources/understanding-child-custody-mediation.html

Divorce can be tolling on all involved so be sure to guard your kids and preserve their future. For more information on divorce and child custody, contact the Scottsdale divorce lawyers at Canterbury Law Group. We are here to protect you and your children: (480) 744-7711.

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Regular Post

Written by Canterbury Law Group

14 August 2023

When Is a Bankruptcy Claim Contingent, Unliquidated, or Disputed?

The bankruptcy procedure requires you to categorize your debts or “claims” as contingent, unliquidated, or disputed. You’ll need to be familiar with these phrases in order to properly identify and categorize your debts on the various bankruptcy forms.

In a bankruptcy, You Must List All Debts or “Claims”

You describe your financial condition to the court, trustee, and creditors on your bankruptcy filings. Your financial information will be disclosed, along with your monthly budget, real estate and personal property holdings, debts or “claims” you owe, income, and recent real estate transactions.

When listing claims in your documentation, you must include the name, address, and amount owed to each creditor. Find out how to fill out bankruptcy forms.

Not Every Bankruptcy Debt Is Conditional, Unliquidated, or Contestable

Because the label is only necessary if it is unclear whether you owe the loan, the majority of debts won’t require a contingent, unliquidated, or contested label. There will almost always be no doubt that you owe the money. You won’t need to describe the claim as contingent, unliquidated, or contested if you don’t have a defense to use to avoid paying the debt.

Consider the scenario when you have a car loan that is past due. The claim would then be for the remaining sum. Other common responsibilities, like credit card debt, would follow the same rules.

Types of Creditor Claims in Bankruptcy: Secured, Unsecured & Priority explains additional claim classifications that you should be aware of.

When a Contingent, Unliquidated, or Disputed Debt Will Arise

Sometimes it’s difficult to determine how much money you owe a creditor. Each of the labels—contingent, unliquidated, and disputed—identifies a specific problem that must be fixed before the claim may be paid.

Maybe how much you owe will rely on what someone else does, or maybe it won’t. Alternatively, you and the creditor may differ on the amount you owe.

If there is an issue, you should note it when filing the claim on your bankruptcy papers under the relevant heading of contingent, unliquidated, or contested claim (the form provides checkboxes for these designations).

A contingent claim is what?

Payment of the claim is subject to a future occurrence that may or may not take place. For example, if you cosigned a secured loan (like a mortgage or auto loan), you aren’t liable for paying it until the other cosigner defaults. Your responsibility as a cosigner depends on the default.

An Unliquidated Debt Is What?

There are times when you owe money but are unsure of how much. Although the precise amount of the debt hasn’t been established, it might exist. Let’s take the example of a lawsuit you filed against someone for injuries you had in a car accident. Your attorney has accepted the case on a contingency basis; if you win, the attorney will receive a third of the recovery; if you lose, the attorney will receive nothing. The debt owed to the attorney is unpaid. The amount of the attorney’s fee won’t be known until the case is settled or won at trial.

A Disputed Debt Is What?

You will tick this box if there is a discrepancy between the amount you owe and what you owe, if anything at all. Consider a scenario in which the IRS has an involuntary tax lien on your property and claims that you owe them $10,000. On the other hand, you think you just owe $500. You should state that the claim is disputed and include the total amount of the lien rather than the amount you believe you owe (you can clarify how much you believe you owe in the notes).

In Bankruptcy, You Must List All Claims

For a variety of reasons, it’s typical for someone to desire to exclude a claim from the bankruptcy petition. You cannot succeed. All claims, including those you believe you owe and those that others think you owe, must be listed.

It’s ideal for you to do that. Even if it would typically be considered a dischargeable debt, if you don’t list a claim, it might not be eliminated or “discharged” in your situation.

Claims Payment in Bankruptcy

Following the payment of creditors, the following will take place:

Creditors will be notified by the bankruptcy trustee assigned to the case that it is a “asset case.”
In order to get a portion of the available funds, a creditor must submit a proof of claim form by a specific deadline.
The claims will be examined by the trustee, who will then pay them in accordance with bankruptcy law’s priority payment system.
But keep in mind that every circumstance is different. Consult with an experienced bankruptcy lawyer if you are unclear about what will happen to the claims in your bankruptcy case.

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The Process of Foreclosure

When the Automatic Stay Is Inapplicable

How the Automatic Stay Can Aid in Foreclosure Prevention

Bankruptcy under Chapter 7

Bankruptcy under Chapter 13

Removal of the Automatic Stay

Speak With Our Bankruptcy Lawyers In Phoenix & Scottsdale

When might supervised visitation be required?

The operation of supervised visitation

Including supervised visitation in your custody arrangement

Do I Need an Attorney to Enforce Father’s Rights?

Read More About:

Speak With Our Father’s Rights Attorneys In Scottsdale

Make My Schedule and Plan Now

How a mother or father can lose custody

Abusing or neglecting the child

Using alcohol or drugs irresponsibly

Abducting the child

Disobeying court orders

Interfering in the child’s relationship with the other parent

Lying to the court

Generally putting the child at risk

Child Custody Evaluations

Modifying orders

Speak With Our Child Custody Attorneys In Scottsdale

For seniors, filing for bankruptcy is questionable in the following two scenarios:

Discover the benefits and drawbacks of declaring bankruptcy for your financial situation.

Choosing the Right Time for a Senior to File for Bankruptcy Bankruptcy isn’t always required or even advantageous, but for some seniors, it can be effective. Consider the following questions for yourself:

Individuals and Couples in Chapter 13

What Happens to Debts During the Plan Period?

Making a Secured Debt More Affordable Through the Plan

Chapter 11: Organizations and People

Operation of Farms and Fishing in Chapter 12

Chapter 9: Local Government

Overview of Domestic Violence

The law focuses on protecting members of the family and household. They consist of:

Former and current spouses

How the relationship is structured

Domestic Violence and Child Care

Decisions made by other courts

Visitation Impact

Parental Rights Are Terminated

Speak With Our Guardianship Lawyers in Arizona

When Do Courts Get Involved in Child Custody?

Overview of Child Custody

When Do Judges Consider Substance Abuse in Custody Decisions?

Can Parents Lose Custody for Drug Use or Alcoholism?

Can You Lose Custody Because of a DUI?

Visitation Conditions for Parents With Substance Abuse Problems

How Does Drug or Alcohol Rehabilitation Affect Custody?

Does Recreational Drug Use Affect Child Custody?

How to Prove Substance Abuse in Custody Cases

When May Judges Require Drug Testing in Custody Cases?

Alcohol and Drug Testing to Keep or Regain Custody Rights

How Can Parenting Agreements Address Drug or Alcohol Use?

Getting Help With Custody Disputes Over Substance Abuse

Speak With One Of Our Child Custody Attorneys In Scottsdale

What Are the Different Types of Bankruptcy Exemptions?

Is it okay if I keep my baseball cards? Jewelry? Pets?

Exemptions: What Are They and How Do They Work?

Bankruptcy under Chapter 7

Bankruptcy under Chapter 13

Bankruptcy Exemptions at the State and Federal Level

Nonbankruptcy Exemptions in the United States

If You File for Bankruptcy, What Can You Keep?

How Do Bankruptcy Exemptions Work?

Chapter 7 Bankruptcy and Exempt Assets

Chapter 13 Bankruptcy and Exempt Assets

Learn more about exemptions in Chapter 13 bankruptcy.

State and Federal Bankruptcy Exemptions

Federal Nonbankruptcy Exemptions

What Is Child Custody Mediation?

Child Custody Overview

Child Custody Mediation Basics

Court-Ordered vs. Private Child Custody Mediation

How to Prepare for Child Custody Mediation

When Custody Mediation Might Not Be Appropriate

5 Tips for Your Child Custody Mediation Sessions

Finding a Qualified Mediator

In a bankruptcy, You Must List All Debts or “Claims”

Choosing the Right Time for a Senior to File for Bankruptcy
Bankruptcy isn’t always required or even advantageous, but for some seniors, it can be effective. Consider the following questions for yourself: