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Written by Canterbury Law Group

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.

bankruptcy, bankruptcy attorneys, Chapter 13, Chapter 13 Bankruptcy, Chapter 7, Chapter 7 Bankruptcy, Scottsdale Attorneys, Scottsdale Legal Help
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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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Preference for the 'Primary Caregiver'
Regular Post
Written by Canterbury Law Group

Preference for the ‘Primary Caregiver’

Physical custody of a child may be requested and granted to parents who are divorcing. In a perfect world, the parents would resolve their differences out of court. However, disputes over child custody and divorce are frequently complicated. They can be challenging for the pair to resolve independently. The duty of determining the best custody arrangement for the child may fall to the court.

When deciding how to manage child custody in a divorce, the court must take a number of considerations into account. Courts are becoming less inclined to support the child’s “primary caregiver.” Instead, they prioritize the “best interests of the child.” This norm frequently promotes an equal level of parental involvement in the child’s life. Some states, like Kentucky, have even enacted legislation that codifies the 50/50 custody arrangement.

This article provides a summary of the criteria the court considers when deciding on a child custody arrangement.

‘Child’s Best Interest’ Standard

Most governments prioritize the “best interests of the child” in custody disputes. This standard takes a holistic approach to the child in order to safeguard their general well-being. The majority of states now hold the opinion that it is best for both parents to play a significant role in their children’s lives. The court does not automatically favor one parent over the other when using this criteria. However, the court may decide that one parent will have less than 50/50 custody if that parent engages in destructive activities that injure the kid.

What is in the child’s best interests will be determined by the court after considering a number of various considerations. To determine custody and issue a custody order, the court will take into account the following factors:

  • Age of the child and the desires or preferences of the child (if they are old enough)
    Relationship of either parent to the child
    The state of mind and body of the parents
    The child’s and parents’ preferred religion
    Maintaining a stable home environment is necessary.
    Assistance and chances for interaction with either parent’s extended family
    Relationships and interactions with other family members
    Adaptation to the community and school
    Too strict punishment from parents, emotional abuse, or domestic violence
    Evidence of drug, alcohol, or sexual abuse by your parents

The family court judge may grant single custody to one parent if the court decides that shared custody is not the best option for the child. This parent will likely be given primary physical custody of the child and may be deemed by the court to be the child’s primary caregiver. Additionally, they may be granted legal possession of the child. In order to provide for the kid financially, the judge may require the noncustodial parent to pay child support.

The ‘Primary Caregiver’ Doctrine:

The “primary caregiver” notion is becoming less prevalent in court decisions. According to this idea, judges would favor the parent who took care of the children the most of the time. The following are some of the criteria used to identify the primary caregiver:

  • Grooming, dressing, and bathing
    Organizing and making meals
    Obligations for laundry and clothing purchases
    Health care policies
    Encouraging involvement in extracurricular activities
    Teaching reading, writing, and math concepts and providing homework assistance
    conversing with educators and going to open houses
    Together with the youngster, plan and partake in leisure activities.
    The court may take these things into account. But today’s courts place more weight on other considerations (including what is in the best interests of the child). View a list of state custody summaries to find out how your state handles child custody.

In fact, since contemporary families embrace shared parenting, courts all over America have shifted toward equal 50/50 parenting. More and more courts are coming to the conclusion that giving the kids time with both parents is in their best interests.

Protect Your Child’s Interests With the Assistance of an Attorney

The custody of the child is one area where there is frequently disagreement, even in amicable separations. In order to decide who gets custody, the court will consider a number of issues. The court is, however, ceasing to take the primary caregiver into consideration. The best interests of the kid are instead the focus of the court.

You can get assistance from a skilled family law attorney in your child custody dispute. They can help you by providing insightful legal counsel and taking child custody laws into consideration. If you are a noncustodial parent, they can aid in advocating for your parenting time or visitation rights. Additionally, they can aid in your representation in custody disputes before the family court.

Speak to a family law professional about your custody dispute right away. Many law firms provide free initial consultations.

Child Custody & Parenting Time, Divorce & Legal Separation, Divorce Attorney, Family Law, Sole Child Custody
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Written by Canterbury Law Group

Grandparent Rights in Arizona

Grandparents form an important part of extended families. In some families, grandparents are like another set of parents to children. Most grandparents care deeply for their grandchildren. If a child’s parents or guardians are failing in their duties, the grandparents might wish to step in and help.

In Arizona, grandparents can legally seek custody of grandchildren or visitation rights under the statutes A.R.S § 25-409. A grandparent must go to family court for these rights, and these petitions are carefully reviewed by a judge. The court decision will be based on what’s legally called the “best interests of the child.” Therefore, grandparents who want legal custody, visitation rights, or seek to adopt a grandchild should consult with Family Law help in Scottsdale.

How Can Grandparents Get Visitation Rights?

If a child’s parents deny the grandparents visitation rights under any circumstance, the grandparents can file a petition in court in Arizona. The court will consider the petition if the following conditions are true:

  • The child’s parents were never married.
  • The grandparent is the parent of a deceased or missing (for at least 3 months) parent of a child.
  • The petitioning grandparent is the parent of a non-custodial parent of a child, where the child’s parents are divorced and have been for at least three months.

If the above conditions are not met, it’s unlikely the court will consider the petition. Exceptions may be granted in the case of extraordinary circumstances, such as abuse. These considerations fall under the child’s best interests category.

Eligibility of the Grandparent

Grandparents petitioning for custody are required to meet certain eligibility criteria as set by Arizona law. The requirements go as follows:

  • The child’s legal parents should be deceased, in the process of getting divorced or legally separated, or were never married
  • For the grandparent to get custody of a child, then remaining in the parent’s custody must be detrimental to the child’s well-being.
  • The grandparent must be able to be “in loco parentis” to the child, meaning that the grandparents will provide the same care and support as a parent.
  • The custody of the child should not have been decided in the previous year (exceptions are granted in cases where the child could be harmed).

If the above eligibility requirements are not met, then the petition will be dismissed.

How Does an Arizonian Court Determine the ‘Best Interests of the Child’?

Under Arizona law, a court must consider “all relevant factors” when determining the best interests of the child. In family law, there are actually five statutory factors that courts always consider when approving a petition. Here are those factors as follows:

  • The relationship the grandparent has with the child in historical terms
  • The reason that the grandparent is petitioning for visitation rights
  • Why the parents may have denied the grandparent visitation rights
  • The impact of visitation on the child’s life or activities if the court grants the grandparent visitation rights, depending on the amount of visitation the petitioner seeks
  • If a parent, or both, are deceased, the benefit grandparent’s visitation will have on other extended members of the family

When Can Grandparents Petition for Visitation Rights

Grandparents can go to the family court directly for visitation rights. If the parents are getting a divorce or are in the middle of a custody battle, then a grandparent can sometimes file the petition as part of the divorce or custody proceedings. Consult with a lawyer for more specifics on when to file.

Grandparents can also formally adopt a child, but these types of petitions are subject to a different set of laws. Your family lawyer will be able to assist you in explaining these laws.

Grandparent Rights in Arizona

Grandparents form an important part of extended families. In some families, grandparents are like another set of parents to children. Most grandparents care deeply for their grandchildren. If a child’s parents or guardians are failing in their duties, the grandparents might wish to step in and help.

In Arizona, grandparents can legally seek custody of grandchildren or visitation rights under the statutes A.R.S § 25-409. A grandparent must go to family court for these rights, and these petitions are carefully reviewed by a judge. The court decision will be based on what’s legally called the “best interests of the child.” Therefore, grandparents who want legal custody, visitation rights, or seek to adopt a grandchild should consult with Family Law help in Scottsdale.

How Can Grandparents Get Visitation Rights?

If a child’s parents deny the grandparents visitation rights under any circumstance, the grandparents can file a petition in court in Arizona. The court will consider the petition if the following conditions are true:

  • The child’s parents were never married.
  • The grandparent is the parent of a deceased or missing (for at least 3 months) parent of a child.
  • The petitioning grandparent is the parent of a non-custodial parent of a child, where the child’s parents are divorced, and have been for at least three months.

If the above conditions are not met, it’s unlikely the court will consider the petition. Exceptions may be granted in the case of extraordinary circumstances, such as abuse. These considerations fall under the child’s best interests category.

Eligibility of the Grandparent

Grandparents petitioning for custody are required to meet certain eligibility criteria as set by Arizona law. The requirements go as follows:

  • The child’s legal parents should be deceased, in the process of getting divorced or legally separated, or were never married
  • For the grandparent to get custody of a child, then remaining in the parent’s custody must be detrimental to the child’s well-being.
  • The grandparent must be able to be “in loco parentis” to the child, meaning that the grandparents will provide the same care and support as a parent.
  • The custody of the child should not have been decided in the previous year (exceptions are granted in cases where the child could be harmed).

If the above eligibility requirements are not met, then the petition will be dismissed.

How Does an Arizonian Court Determine the ‘Best Interests of the Child’?

Under Arizona law, a court must consider “all relevant factors” when determining the best interests of the child. In family law, there are actually five statutory factors that courts always consider when approving a petition. Here are those factors as follows:

  • The relationship the grandparent has with the child in historical terms
  • The reason that the grandparent is petitioning for visitation rights
  • Why the parents may have denied the grandparent visitation rights
  • The impact of visitation on the child’s life or activities if the court grants the grandparent visitation rights, depending on the amount of visitation the petitioner seeks
  • If a parent, or both, are deceased, the benefit grandparent’s visitation will have on other extended members of the family

When Can Grandparents Petition for Visitation Rights

Grandparents can go to the family court directly for visitation rights. If the parents are getting a divorce or are in the middle of a custody battle, then a grandparent can sometimes file the petition as part of the divorce or custody proceedings. Consult with a lawyer for more specifics on when to file.

Grandparents can also formally adopt a child, but these types of petitions are subject to a different set of laws. Your family lawyer will be able to assist you in explaining these laws.

All states have recognized grandparent visitation rights for decades. Grandparent rights ensure that children have access to the benefits of having grandparents in their lives. Grandparents may exercise their custody rights when the child’s parents are unable to care for their child

Grandparent Custody Requirements

Statutory provisions for child custody are usually less specific than grandparent visitation. First, courts must consider the parent-child relationship with each parent.

If either or both parents are alive, courts in most states will presume that the parents of the child should retain custody. The court will always put the best interests of the child first. Ultimately, the court prioritizes the safety and well-being of the child.

The court will consider several different factors to make this decision. For example, the court might consider the child’s wishes if the child is old enough. The court will look at the physical health and mental health of each parent. They will also consider any history of domestic violence or substance abuse.

If the court finds one is an unfit parent, they might terminate their parental rights. This typically only happens when there has been severe abuse and neglect of the child and the parent has been given ample opportunity to change the situation. They might lose legal or physical custody of the child. The court also might order the parent who does not have primary physical custody to pay child support through a court order.

Grandparents must generally prove the parent is unfit to convince the court to award custody to them. It’s generally very difficult for a grandparent to get custody of their grandchild against the parent’s wishes. Other non-parents and family members might also petition the court for custody of a child.

Grandparent Visitation Requirements

Grandparents generally have to meet certain conditions before they can be granted court-ordered visitation. In a majority of states, courts must consider the marital status of the biological parents. Then, the court will evaluate the relevant factors to determine if visitation is appropriate.

Some states consider marital status only when the parents deny visitation rights to the grandparents. In other states, marital status is a factor if the grandchild has lived with the grandparents for a specific duration.

A minority of states require that at least one parent is deceased before a court can award visitation to the parent of the deceased parent of the child. For example, the court may award a maternal grandparent in one of these states with visitation only if the mother of the child is deceased.

In every state, grandparents must prove that granting visitation to the grandchild is in the best interest of the child. Several states also require that the court consider the grandparent-child relationship. They might also consider the effect of grandparental visitation on the relationship between the parent and child. They will also consider the possibility of harm to the grandchild if visitation is not allowed.

Effect of Adoption on Grandparent Visitation Rights

State statutes vary in their treatment of cases in which a grandchild has been adopted. In several states, adoption by anyone—including a stepparent or another grandparent—terminates the visitation rights of the grandparent.

In some states, adoption by a stepparent or another grandparent does not terminate visitation rights, but adoption by anyone else terminates visitation rights. In other states, adoption does not affect the visitation rights of grandparents as long as other statutory requirements are met.

Learn More About Your Rights as a Grandparent From an Attorney

Most grandparents would give anything to spend more time with their grandchildren. But family relationships can get complicated. Most state laws recognize the rights of individuals to visit with their grandchildren.

Find out how this could impact your family by talking to an experienced family law attorney. An attorney can provide valuable legal advice about your situation. Lawyers can help with child custody cases, resolve custody disputes, and represent you in family court.

Family Law, Family Law Attorney, Scottsdale Divorce, Scottsdale family attorneys
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Written by Canterbury Law Group

Sole Custody

When a divorce involves children, Canterbury Law Group fights to protect their future and well-being both emotionally and financially.

Our Scottsdale divorce lawyers work diligently to ensure your children remain a priority throughout and after the divorce, and strive to remedy sensitive issues including custody arrangements and parenting plans. Our primary focus is to reduce the possible future damage divorce can have on children and relationships.

We often see parents who hope to win sole child custody and “take the kids”. However, it is important to realize that the court’s priority is the best interests of the child, which frequently mandates a ruling of joint custody. Many parents go into a child custody hearing with the intention of seeking sole custody. For some parents, this is because they believe that the other parent is “unfit” to raise their child. Any parent hoping to be awarded sole custody should realize that there is a higher burden of proof for the parent seeking sole custody. You will have to literally prove in a court of law that the other parent is an unfit parent based on substance abuse, criminal history or acts of domestic violence.

To award sole custody, the courts have to establish one parent as the “better parent,” which can be difficult to do, particularly if both parents have been involved up until this point. In addition, most judges are reluctant to prevent either parent from having a relationship with their child because the implication is that both parents, together, are best able to care for a child. As a result, any parent seeking sole custody has to prove that he or she is best able to care for a child, with or without the assistance of the other parent.

In addition, from a judge’s standpoint, parents should not be trashing one another during a child custody hearing. Instead, the parent seeking sole custody should focus on proving that he or she is the better parent without attacking his or her counterpart. When seeking sole custody, one should focus on the physical and psychological well-being of the child. Physical well-being includes your child’s routine, sleeping habits, eating schedule and activities. Judges tend to notice parents who encourage a healthy lifestyle. The factors of psychological well-being may include making sure that the child has access to liberal visitation with the other parent. Judges tend to favor parents who openly support the child’s the ongoing relationship with the other parent. Whether hoping for sole custody or joint custody, the legal team at Canterbury Law Group in Scottsdale can effectively represent you. Contact us today to schedule your initial consultation.

Child Custody & Parenting Time, Divorce & Legal Separation, Divorce Attorney, Family Law, Sole Child Custody
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Ideas When Filing Chapter 7 Bankruptcy

The most common form of bankruptcy in the United States is Chapter 7. At Canterbury Law Group, we constantly work with clients to file Chapter 7, which allows individuals to extinguish all debts which are “dischargeable” under the Bankruptcy Code. In a Chapter 7, all of the debtor’s non-exempt assets on the petition date are liquidated through the priorities set forth in the bankruptcy code. At the time of filing, the bankruptcy code establishes the creation of your “debtor’s estate” which includes all “non-exempt assets.” As a Debtor you have various duties and obligations, including significant duties of co-operation, which are owed to the Bankruptcy Trustee. These obligations are designed to assist the Trustee in the administration of your bankruptcy estate.

The Scottsdale bankruptcy lawyers at Canterbury Law Group will counsel you regarding these duties, which if followed, will make your case run smoothly. Unfortunately, many debtors who are not fully informed of these obligations run the risk of not receiving a full discharge of some or all or their debt. If you’re thinking of filing Chapter 7, here are some recommendations from our lawyers:

1. Complete the Mandatory Credit Counseling – Before you can file chapter 7 bankruptcy, it is essential to complete credit counseling. It is a mandatory step before you can file and often requires paying a fee. Otherwise, your filing will not be allowed to continue.

2. File All Chapter 7 Paperwork – Complete and file all necessary paperwork in court. Make sure all of your paperwork is accurate. Determine any fees associated with your filing.

3. Meet With Your Creditors – Approximately one month after filing the petition, you will need to meet with your creditors, an arrangement made by the court. During this important meeting, your creditors will question you regarding your finances and property. Typically this meeting involves only a few people connected with the credit card companies to whom you owe your debt. Your lawyer can certainly be present to aid you through this process.

4. Attend the Personal Financial Management Instruction Course – In addition to your credit counseling course, a personal financial management course generally costs about $30 and is necessary for completing your filing of chapter 7. If you skip the money management course, you risk dismissal of your case.

Having a trusted legal team on your side is critical during bankruptcy. Call Canterbury Law Group today to schedule your consultation. 480-744-7711.

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Joint Custody

When parents divorce or separate, they come across new legal jargon like “joint custody.” But what does that actually mean in a legal and practical sense?

In contrast to solo custody, where one parent has sole legal custody of their kid, joint custody involves both parents sharing these rights.

Depending on which parent has the child’s legal custody, either joint custody or solo custody may apply. Parents who share custody have equal say over important life choices for their children. Parents do not share these rights in single custody cases.

Joint custody arrangements and legal custody

It is crucial to mention legal custody in any conversation about child custody agreements. When a parent has legal custody, they are able to make important choices that will effect their child’s future. Major choices are frequently made in relation to extracurricular activities, health care, extracurricular schools, and religious instruction. However, other facets of your child’s life might also be considered to be such. When trying to ascertain the areas of your child’s life over which you possess decision-making authority in a joint custody arrangement, it is crucial to verify with your attorney regarding what technically qualifies as “major.”

Parents who share custody have an equal say in such important choices. You risk being found in contempt of court if you try to stop the other parent from taking part in this decision-making. Any custody agreement is joint only if there is an equal division of the legal authority to make such significant choices.

Every state has its own laws on the matter, and joint custody can take many different forms.

Official Language for Spending Time with Children

In the majority of states, time spent with your child when you share custody of them is formally known as “timesharing,” “parenting time,” or “visitation.” While many may refer to such a situation as having “joint physical custody,” the term is not legally recognized to describe features of visitation in custody situations where joint legal responsibility for important life decisions is allocated.

One Standard Arrangement for Custody
One popular form of joint custody is one in which both parents are entitled to an equal amount of time with their child while also sharing the responsibility for all significant life decisions for that child. In these arrangements, the child will live with each parent for a certain amount of time, and the parents will work together to make choices regarding the child’s welfare and upbringing in a manner akin to when they were married (legal custody).

Example: Mother and Father agree to jointly decide on all significant matters pertaining to the welfare and upbringing of the child (legal custody) and set up a timetable where the child spends one week at a time with each parent.

Additional Types of Joint Custody

There are further joint custody situations that parents can come upon. One involves equal physical contact with the child but unequal legal custody. This could imply that the child will only live with one parent while both parents agree to work together to make parenting decisions.

Example: Mother and Father agree to jointly resolve all significant matters pertaining to the welfare and raising of the child (legal custody), however the child will reside with Mother, with the Father being granted visitation rights. A parent who has visitation rights is allowed to spend a specific amount of time with their child.

There are several forms of joint custody. For instance, even though the child spends time with both parents on a rotating basis, one parent can be given the entire authority to decide on the child’s educational options.

Get Legal Assistance from a Professional in Your Child Custody Dispute

It can be advantageous to have a knowledgeable attorney defending and guiding you in a custody dispute. Whether you want shared custody or some other arrangement, a child custody lawyer can help you get the best outcome for you and your child. Get a jump start right now by getting in touch with a local child custody lawyer.

Child Custody & Parenting Time, Divorce & Legal Separation, Divorce Attorney, Family Law, Sole Child Custody
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Arizona District Attorneys

The prosecuting officer in a criminal case, or the individual who represents the state in the prosecution of criminal acts, is a district attorney (D.A.) or county attorney. In other words, the D.A. is the lawyer who will work to have you convicted of the charges at your trial if you have been charged with a crime.

In most states, there is a county prosecutor’s office, and in Arizona, the County Attorney who is in charge of bringing cases to trial is elected to that post. As a result, the district’s voters’ interests can have an impact on the local prosecutor’s office, which may therefore choose to prioritize some offences above others in its prosecutions.

Benefits and Drawbacks of Speaking with the DA

This can occasionally be advantageous for criminal defendants, particularly when negotiating a plea deal. This can sometimes work against defendants, particularly if the prosecution is looking to “make an example” of them because of the allegations they are up against. It is common for defendants to discover about the county’s prosecutors for the first time during their own case, thus they might not be aware of the prosecutor’s office’s procedures and preferences.

Speaking with prosecutors might be challenging. Since they are actively compiling evidence against you, anything you say or admit runs the potential of being used against you at trial. However, knowing more about the prosecution’s approach and readiness to settle your case before to trial may help your case. But before you do, you should be certain that you are well-informed about your situation and aware of how to safeguard your legal rights.

Attorney General of Arizona

The state attorney general represents the state in court, as opposed to the district or county attorneys who represent their individual jurisdictions. Additionally, the Attorney General’s Office prosecutes cases on behalf of injured Arizonans and enforces consumer protection statutes.

Collaborating With a Lawyer

You can get help from a criminal defense lawyer in dealing with the prosecution. The prosecutors in their county are better known to local criminal defense lawyers, and some of them may even have a solid working connection. This can be advantageous for their clients during any pre-trial proceedings. You can develop your defense plan based on the evidence in your case with the assistance of a defense attorney as well.

Most significantly, in contrast to a prosecutor, a criminal defense lawyer is in charge of making sure that your rights are upheld throughout the criminal justice process. Consult with a knowledgeable defense attorney before approaching the prosecutor’s office if you’re considering doing so.

civil domestic violence, criminal law system, domestic violence, Emergency Protection Order, Order of Protection, orders of protection, Restraining Order, Scottsdale Attorneys, Scottsdale Legal Help
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Medical Bankruptcies

What Happens to Liens in Chapter 7 Bankruptcy?

Medical debt can be discharged in bankruptcy, but you should first look into nonbankruptcy options.

If you have decent credit and are having difficulties paying a significant medical bill, you might want to look into alternative possibilities before declaring bankruptcy.

It is true that declaring bankruptcy would probably result in a decline in your credit, albeit it might not last as long as you believe. However, you can be in an even worse situation if you can’t pay the medical expense and don’t declare bankruptcy.

Here is what to anticipate.

You’ll initially start getting reminders of late payments. The medical provider could eventually sue you and win a financial judgment. Then you might not be able to undo some of the effects of bankruptcy, such as wage garnishment, a bank levy, or the placement of a lien against your property.

Options Other Than Bankruptcy for Medical Debt

If you have strong credit, you might be able to use one of these methods to pay off your hefty medical cost.

Talk a Deal With the Health Care Provider

To begin with, confirm that all insurance payment difficulties have been resolved. Consider settling with the creditor after you have obtained all applicable insurance coverage. The medical provider may deduct a portion of the fee if it was for uninsured medical expenses. Many hospitals and other healthcare organizations often waive or reduce bills for patients without insurance.

Inquire Regarding Assistance Programs

Depending on your economic level, most hospitals have assistance programs that, if you qualify, will give you free or reduced hospital care. For instance, the Hospital Care Assurance Program (HCAP) will pay costs for procedures that are deemed medically necessary in several jurisdictions. Additionally, federally tax-exempt non-profit hospitals may have to be lenient with you and other patients who are in financial need when it comes to medical billing. This may be relevant to you. To learn more and apply for the necessary coverage, get in touch with the financial aid counselor at your hospital.

See Managing High Medical Debts for further information on these and other choices.

Bankruptcy for Medical Debt

Your good credit may suffer since a collection action will appear on your credit report if you are unable to pay the debt and it appears that the creditor may pursue you for payment. Additionally, if the provider sues you and wins, it may garnish your pay or pursue other forms of recoupment.

In addition to erasing your debt, filing for bankruptcy will put you back on the path to financial recovery as quickly as possible.

Medical debt and Chapter 7

A Chapter 7 bankruptcy may be the best option for you if you have low income and assets with little to no equity. You are not need to have a certain amount of debt. On a single, sizable debt, you may apply for Chapter 7. Medical debt will be eliminated in Chapter 7 bankruptcy, along with the majority of other unsecured debt (debt that isn’t secured by security).

Healthcare Debt and Chapter 13

You can file for Chapter 13 bankruptcy if you don’t meet the requirements for Chapter 7 bankruptcy or if you own assets that you might lose in a Chapter 7 bankruptcy. You will pay back the percentage of the medical debt you can afford through your repayment plan in Chapter 13 bankruptcy. At the conclusion of the case, the court will discharge (wipe out) the remainder.

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Domestic Violence Law: Violence Against Women Act (VAWA)

The 1994 Violence Against Women Act (VAWA), with additions passed in 1996, outlined grant programs to prevent violence against women and established a national domestic violence hotline. In addition, new protections were given to victims of domestic abuse, such as confidentiality of new address and changes to immigration laws that allow a battered spouse to apply for permanent residency.

The key provisions of the Violence Against Women Act are:

  • Full funding of rape kits and legal/court fees for domestic violence protection orders
  • Victim protection orders are recognized and enforced in all state, tribal, and territorial jurisdictions within the U.S.
  • Implementation and funding of special domestic violence crime units in local communities
  • Special domestic violence and sexual violence training for law enforcement officers
  • Ability of tribal courts to try non-Indian spouses or intimate partners of Indian women in domestic or dating violence cases
  • Provision allowing undocumented immigrants who are the victims of domestic violence to apply for a green card in exchange for helping law enforcement officials prosecute their abusers
  • Misdemeanor Conduct

According to the VAWA Act, a misdemeanor crime of domestic violence, “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.” (Section 921(a)(33)(A)).

Under these guidelines, an intimate partner is a spouse, a former spouse, a person who shares a child in common with the victim, or a person who cohabits or has cohabited with the victim.

Traveling Restrictions

Another area this act addresses is interstate traveling for the purposes of committing an act of domestic violence or violating an order of protection. A convicted abuser may not follow the victim into another state, nor may a convicted abuser force a victim to move to another state. Previously, orders of protection issued in one jurisdiction were not always recognized in another jurisdiction.

The VAWA specifies full faith and credit to all orders of protection issued in any civil or criminal proceeding, or by any Indian tribe, meaning that those orders can be fully enforced in another jurisdiction. Other states recognize orders of protection issued in other jurisdictions.

Landmark Cases on Interstate Provisions

There are several landmark cases that have been decided under these interstate provisions. For example, in United States v. Rita Gluzman (NY), the defendant traveled from New Jersey to New York with the intention of killing her estranged husband. The weapons she took with her were used in the murder. The Second Circuit upheld the VAWA provision over the defendant’s constitutional challenge, and Gluzman was convicted for this crime.

VAWA originally allowed victims of domestic abuse to sue for damages in civil court. However, this part of the VAWA was overturned by the U.S. Supreme Court in United States v. Morrison (2000), wherein the court held that Congress did not have the authority to implement such a law.

VAWA Impact on Domestic Violence Arrest Policies

Another goal of the Violence Against Women Act was to influence state legislators, particularly in regard to arrest policy for domestic situations. In order to receive federal funding, states must adopt certain responses.

The Act authorizes grants to states, “to implement mandatory arrest or pro-arrest programs and policies in police departments, including mandatory arrest programs and policies for protection order violations.” VAWA has had a profound effect on state laws governing domestic abuse.

Questions About Federal Domestic Violence Law? Talk to an Attorney

If you or someone you know has been accused of domestic violence, whether interstate abuse, stalking, or something else, you should strongly consider speaking with an attorney. Furthermore, if you’ve been the victim of domestic violence, you’ll likely have many legal questions moving forward. Start the process by contacting an experienced family law attorney today.

civil domestic violence, criminal law system, domestic violence, Emergency Protection Order, Order of Protection, orders of protection, Restraining Order, Scottsdale Attorneys, Scottsdale Legal Help
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