About Our Firm
- All Family Law Group, P.A.
- Since 1997 we are experienced and knowledgeable Tampa attorneys practicing exclusively in Divorce, Family, Stepparent/Relative Adoption, Consumer/Personal Bankruptcy & Mediation. We practice primarily in Tampa, Riverview, Brandon, Valrico, Lithia, Carrollwood, North Tampa, Plant City and all of Tampa Bay. Our lawyers have experience practicing in contested and uncontested divorces, including military divorces, and family law, child support, child custody and visitation, relocation of children, alimony, domestic violence, distribution of assets and debts, retirement/pensions (military and private), enforcement and modification of final judgments, paternity actions, adoptions and name changes. We offer a free consultation and we are happy to discuss your case. Call or email to schedule a consult. Our representation of our clients reflects our dedication to them.
Sunday, May 24, 2015
A recent trend in bankruptcy law is for trustees, the individuals responsible for collecting money for creditors, to go after tuition payments parents made to their children’s undergraduate institutions. As the trustees see it, the funds parents sent to those institutions should have instead been used to pay off the parents’ debt. Since 2008, over 25 colleges and universities have been sued to recover tuition payments.
What is a Trustee?
A trustee is the person who is responsible for taking care of the financial affairs of a bankrupt individual. They have broad power to retrieve funds spent by the bankrupt person and give those funds to creditors.
Part of a trustee’s job involves retrieving assets that were hidden and money spent prior to bankruptcy, even if that money was spent several years before filing. If a trustee finds that the individual spent money and did not get a “reasonably equivalent value” for that expense, then they are allowed to recover it. The process of retrieving these funds is called a “claw back” based on the concept of fraudulent transfer.
What is Fraudulent Transfer?
When you file for bankruptcy, all of your property at that time becomes part of the bankruptcy estate. If you have assets or property that go above the allowed exemption amount (i.e. the maximum amount you are allowed to have to file bankruptcy), then the trustee can take that excess property to settle creditor debts. The maximum allowable amount to file bankruptcy has been believed to possibly encourage people to get rid of, or transfer, assets before filing in order to qualify for bankruptcy.
For example, if someone had an expensive car they wanted to keep, but it put their property value over the allowed exemption rate to file for bankruptcy, it is possible that an individual would sell that car to a family member for half its retail value to keep the car in the family, but not have it count for bankruptcy purposes. This is a fraudulent transfer because the family member gave away property for less than its equivalent value. In this circumstance, a trustee could “claw back” the car to repay creditors.
What’s the Argument?
It’s the same idea with college tuition payments. Just like the car, the parents did not get the “reasonably equivalent value” of their children’s education because they themselves were not the recipient of the education. While the benefit of a higher education on an individual’s future has long been established, certain courts have found the link between a child’s education and the parents’ value of that child’s education too attenuated to avoid claw back.
Though the trustee has discretionary authority to go after certain funds, he has a duty to bring lawsuits where the benefits clearly outweigh the costs. Considering that tuition rates have skyrocketed in recent years, the benefits are becoming a popular option for repayment. At minimum, pursuing tuition payments in bankruptcy is no longer dismissed because of the minimal repayment options.
Bankruptcy courts are split on whether or not to allow this type of claw back and Florida has yet to rule on the issue. Contact the experienced Tampa bankruptcy attorneys at All Family Law Group, P.A. today to help you get back on your feet and take control of your finances. Call 813-321-3421 for a free consultation, or contact us online today.
By Lynette Silon-Laguna Google+
Florida Governor Rick Scott recently signed into law Senate Bill 342, further clarifying the specifics of a “no contact order” and what types of communication it prohibits. No contact orders have long been used to protect victims of domestic violence and prevent the abuser from intimidating the victim. The new law’s clarifications use broad language to accommodate all forms of communication and firmly establish that no contact orders are in effect immediately upon the judge’s order. While no contact orders are exclusively used in the criminal context, the new clarifications additionally shed light on what constitutes communication for domestic violence injunctions.
What is a No Contact Order vs. Domestic Violence Injunction?
A no contact order is similar to a restraining order. Typically, it is ordered by a court as a condition of a defendant’s pre-trial release. The order prohibits a criminal defendant, or a convicted felon, from contacting the victim in the case. These orders usually last for the duration of the criminal matter or until the court otherwise removes or modifies it. The new law ensures that these orders go into effect immediately after the judge issues it. These are entirely criminal orders.
A domestic violence injunction (DVI) is similar to the no contact order in several ways. DVIs are applied for by victims of domestic violence who reasonably believe they are in imminent danger of further acts of domestic violence. If, based on the petition alone, the judge finds an immediate and present danger of domestic violence the court may grant a temporary DVI preventing the abuser from committing any acts of violence and communicating with the petitioner. These temporary orders can also provide the petitioner temporary custody and exclusive control of shared housing. DVIs become effective when the abuser is given a copy of the DVI paperwork. After the temporary hearing, a full hearing will be set, since the temporary order lasts a maximum of 15 days.
What Type of Communication is Prohibited?
Specifically, these prohibit the defendant from directly and indirectly contacting the victim. This means the defendant cannot personally call, text, email, instant message, gesture towards, touch, or even intentionally be near the victim. This includes all communications through social media and professional networking sites. To accommodate ever-changing communication technologies, the new law unequivocally states the defendant cannot communicate “orally or in any written form” to cover any and all measures of written or spoken communication.
Defendants also cannot indirectly contact the victim. This means defendants cannot cause a third person, usually a friend or family member, to contact the victim that they themselves are prohibited from speaking to.
How Can DVIs Be Lifted?
A DVI will last longer than the original 15 days set forth in the temporary order. These final injunctions may provide more protections than a temporary injunction and can last indefinitely. Should you be granted an indefinite DVI, motions to modify its conditions can be filed. Similar to the no contact order, DVIs cannot be eliminated simply because both parties wish to begin speaking or reunite; the judge must dissolve the DVI. Either party can petition the judge to terminate the order and the judge will decide whether or not to grant the termination.
How Do I Protect Myself?
If you are a victim of domestic violence or domestic abuse, there are powerful legal tools to help you obtain the protection you need. If a restraining order or DVI has been entered against you, there are legal procedures in place to protect your rights. The experienced and compassionate attorneys at All Family Law Group, P.A., in Tampa will provide experienced legal help in any domestic violence-related legal matter. Call 813-321-3421 for a free consultation, or contact us online today.
By Lynette Silon-Laguna Google+