Is it necessary to file for bankruptcy?

Whether or not you must file for bankruptcy depends on your situation. If your get behind in your credit card debt or other unsecured debt then the creditor can sue you to get a judgment against you for the amount of the debt, plus interest, penalties and attorney fees. You will know when you are being sued as you must be personally served with a petition and you will have a certain amount of time to respond to it. All of the instructions for your response and to whom you must respond will be included in the summons attached to the petition. If you do not respond to the petition, then a default will be entered against you and the creditor will obtain a judgment on what it has requested in the petition.

That a creditor will sue you is a possible scenario; however, it is also possible if you don’t have a means to pay the creditor that it will write off the amount of your debt and not attempt to collect it. In essence, whether you will be sued or not depends on your ability to pay the debt back. If the creditor believes you’re unable to pay it back then it will not waste money paying an attorney his or her fees and costs to obtain a judgment and take the steps necessary to collect it.

If a creditor determines that it will be able to collect its judgment against you, then it will proceed with the action. Once it has obtained the judgment, the judgment will continue to accrue interest until it is paid. Furthermore, it will be listed on your credit reports and it will result in substantially reducing your credit score. Judgments will stay on your record for a certain amount of time depending on your jurisdiction, and even if the judgment is paid, your credit report will reflect that it is paid, but it will remain on the report for at least seven years. Furthermore, judgments can be renewed when they expire and the length of time depends on your state laws.

Collecting the Debt

In general, the creditor may do one or more of the following to collect the debt:

A. Require you to complete an information subpoena where you are required to answer detailed questions regarding your income, assets, etc. or you may be required to attend a hearing before the court to be questioned on your income and assets.

B. The creditor may place a lien on any real estate you own by filing a copy of the judgment in official records in the county where your property is located. When that property is sold, the lien must be paid to clear title to the property.

C. The creditor may garnish your wages up to a percentage regulated by state law.

D. The creditor may seize personal property which has value, such as a vehicle, antiques, bank accounts, etc. Pursuant to your state law a certain amount of personal property is exempt from the creditors

Every state has different regulations as to how a creditor may collect a judgment, the length of time the judgment is valid, the amount of personal property exempt from seizure and the percentage of your pay that can be garnished. Therefore, it is necessary to obtain specific information from an attorney where you live.

If your credit score has been demolished by unpaid bills, you have nothing to lose by filing bankruptcy. In actuality, bankruptcy is a new beginning and chapter 7 will wipe out all or most of your debts and often times you will be able to obtain credit again shortly after your discharge. Most bad consumer debt will remain on your credit report for 7 years whether paid or not, while paid or unpaid judgments may remain on your credit report for 7 years or longer depending on state law. Lenders are less likely to lend to you with bad credit, then to lend to you after a bankruptcy.

Article By:  Lynette Silon-Laguna Google+

Pets Matter in Divorce

Why Pets Matter In A Divorce

‎Saturday, ‎November ‎17, ‎2012, ‏‎3:18:24 PM | Silvana D. Raso

 

Many pet owners treat their pets as if they are their own children, whether it be a dog, cat, turtle or gerbil. For these owners, the pet is an integral part of the family. But owner beware: in my experience as a divorce attorney, the pet that you love and cherish on can easily be taken away from you in an instant if you are involved in a nasty divorce.

According to a quarter of respondents in a 2006 survey by the American Academy of Matrimonial Lawyers, pet custody cases have increased noticeably. So who gets Fido? If you think you are entitled to your pet because you think you love him/her more, you're barking up the wrong tree.

Your pet may be considered a member of the family but the courts think otherwise. In divorce cases, the harsh reality is that pets are treated as another piece of property that is being divided in the eventual settlement. Other factors such as veterinary bills, "visitation" rights to the pet, and miscellaneous expenses can turn a nasty divorce into a toxic one.

The best solution for you, your future ex-spouse and your pet is to settle custody and visitation privately to avoid having someone else with no emotional connections decide your pet's fate for you. How the custody is determined can vary greatly too. A judge in one case threatened to put a cat in the middle of a room and grant custody to whichever spouse the cat ran toward. The couple ended up determining custody privately.

Some couples cannot stand the thought of dealing with their ex and put the decision in the hands of the court. Before taking this leap though, here is what will be taken into consideration in a judge's decision:

Ownership: If one spouse owned the dog before the marriage, the dog will typically remain with that spouse when the marriage goes sour.

Primary care : If you are the one feeding your cat, walking your dog, cleaning after your fish or reptile, and can prove that you perform these tasks, then there is a better chance that the pet will remain with you. Additionally, if one spouse is never home due to a busy work or travel schedule, the other spouse is in a better position to claim the pet.

Best interests of the children: If a couple has children, the pets will go where the children go to prevent any further loss, pain or heartache.

Prenuptial agreement: If it was determined in your prenup who would get your pet in the event of a divorce, then there is no argument as to who Fido is going home with.

Remember, the court may not see your pet as a family member but you do. So when you introduce a pet into a marriage, consider all that is stake in the event of a divorce. Not only will you have a happier ending, but Fido will keep his tail wagging too.

Silvana D. Raso heads the family law practice at Englewood Cliffs, NJ-based Schepisi & McLaughlin, P.A. where she counsels clients in all areas of matrimonial and family law, including pet custody.

Financial Hardship and Bankruptcy: Don't use exempt from creditor assets to pay current debts.

Financial hardship can occur at anytime. No matter how secure your financial situation may presently be, you never know what the future may bring. Job security is an oxymoron. Your position may become outdated because of new technology, your position may be outsourced overseas, or the company you work for may suffer its own financial hardship and either liquidate or reorganize. If you are able to retain your position in the latter circumstance, you may receive a decrease in salary. The same applies if you are an entrepreneur and you are self-employed, which does give you somewhat more control over your destiny.  In addition, divorce can be extremely detrimental to your financial circumstances.

Once a job loss or self-employment income loss occurs, then it is very easy to start spiraling into a financial abyss. You have acquired a certain standard of living and debts to be paid, including essentials such as your rent or mortgage, car loans, food, utilities, etc. When you don’t have the funds to pay your debts then you may use your credit cards for current living expenses and payment of your essential debts, thus incurring more debt that cannot be repaid. Once you miss or are late paying a credit card payment, then you will incur late fees and if you continue to miss or are late on your payments your interest rate will increase astronomically resulting in your debt increasing exponentially, until there is no hope to pay it off.

Or instead of or in addition to using your credit cards to pay for your living expenses and debts, some debtors will take funds from assets that would be exempt in a bankruptcy and pay their essential debts such as the mortgage or rent, car loans, as well as unsecured credit card debt or other unsecured debt such as medical bills, so that they don’t fall behind. Examples of reducing exempt property to pay debts are obtaining second mortgages on homes where they reside, taking funds from retirement accounts and paying taxes and possibly penalties, or taking all or part of the cash value of a life insurance policy. Depending on your age or other cirecumstances, this can be disastrous to use funds that you need for retirement to pay current living expenses and unsecured debt.

Unfortunately, this occurs to many people who are devastated because they cannot pay their debts, although that they cannot do so most often is no fault of their own. It is important to know prior to this occurring how to protect and keep your property if you must file for bankruptcy. In short, do not use up assets that will be exempt in bankruptcy to pay your unsecured debt. Or do not pay off any secured debt which will make it a non-exempt asset. In example, do not pay off your vehicle. Either keep a loan that you have on it or get a loan on it. There has been a U.S. Supreme Court ruling in Ransom v. FIA Card Services decided January 11, 2011, that in short sets the precedence that a debtor who does not make a loan or lease payment may not take the car-ownership deduction in Paragraph 23 and 24 of the means test; however, the debtor may deduct the operating expenses in 22A. This may drastically change whether you will pass the means test and be eligible for a Chapter 7 bankruptcy, rather than a Chapter 13 bankruptcy,

If your credit score has been demolished by unpaid bills, you have nothing to lose by filing bankruptcy. In actuality, bankruptcy is a new beginning and if you qualify, chapter 7 will wipe out all or most of your debts and often times you will be able to obtain credit again shortly after your discharge. Most bad consumer debt will remain on your credit report for 7 years whether paid or not, while paid or unpaid judgments may remain on your credit report for 7 years or longer depending on state law. Lenders are less likely to lend to you with bad credit, then to lend to you after a bankruptcy.

Chapter 13 is available for those who do not qualify for a Chapter 7 bankruptcy, although there is a 60 month plan period.  This Chapter does have benefits that are not available in a Chapter 7 such as the ability to pay arrearages for secured property loans during the plan and preventing a foreclosure or repossesion of a vehicle. 

Call us today at (813) 672-1900 to schedule a free consultation to discover your options.  Visit our website at www.familymaritallaw.com for more information. 

By: Lynette Silon-Laguna Google+

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Modification of Child Support in Florida

If you are paying or receiving child support, then it is important for you to know that if you or the other parent has a substantial change in circumstances, you must file a Supplemental Petition for Modification of Child Support immediately upon the change. This applies to those who are residing in and out of Florida and have a Final Judgment or subsequent Order in Florida to pay child support. The reason for this is because any change in the payment will be retroactive to the date filed. So your child support will continue as it is currently ordered until the date a Supplemental Petition is filed regardless of the change in circumstances. You will, however, have to continue to pay the prior court ordered child support until an order has been entered modifying it, if any. The modified order will take into consideration that you have paid more or received less than the change of circumstances would warrant under the guidelines from the date the Supplemental Petition was filed to the date the order is entered.

In general, factors for modification of child support if you are the payee are as follows:

1. Your income has decreased or you have lost your job since the original order was entered. The decrease in pay or loss of job must be involuntary, so voluntarily reducing your income and changing jobs would not qualify. The Florida Child Support Guidelines in the Florida Statutes, Section 61.30 (1)(b), states that"... it may provide the basis for proving a substantial change in circumstances upon which a modification of an existing order may be granted. However, the difference between the existing monthly obligation and the amount provided for under the guidelines shall be at least 15 percent or $50, whichever amount is greater, before the court may find that the guidelines provide a substantial change in circumstances.”

2. The other parent's income has increased substantially so that a change in the guidelines would be at least $50 or 15 percent of the current guidelines amount. The reason for this is because each parent owes a percentage of the total child support obligation depending on his or her income. If the other parent's income goes up, then his or her percentage of the obligation goes up and yours goes down.

3. The cost of the children's health insurance was included in the child support guidelines worksheet originally and the health insurance is no longer available.

4. The cost of daycare was included in the child support guidelines worksheet originally and the child is no longer in daycare. For this reason, we normally advise that daycare be separate from the child support guidelines if agreed upon by the parents, so that a modification is not necessary.

In general, factors for modification of child support if you are the payor are as follows:

1. Your income has decreased substantially or you have lost your job and the change in the child support obligation is sufficient to warrant a modification.

2. If the other parent's income has increased substantially and sufficiently to change the child support obligation pursuant to the statute.

Go to the following link for more information if you are paying through or your income is being deducted by the Florida Department of Revenue:

http://dor.myflorida.com/dor/childsupport/modification.html

www.familymaritallaw.com

Article By:  Lynette Silon-Laguna Google+

Modification of Mortgage in Chapter 13 Bankruptcy

There are many mortgage borrowers struggling to make their monthly loan payments and falling behind in their payments. The Tampa Division of the Florida Middle District Bankruptcy Court has devised a mortgage bailout program formally named a mortgage modification mediation program under Chapter 13 bankruptcy. This program is intended to help borrowers to obtain a modification of their mortgage or home loan under Chapter 13 bankruptcy. So if you are behind in your mortgage and/or finding it difficult to make the monthly payment, you should consult with an experienced bankruptcy attorney as this may be beneficial to you.

If so, the Chapter 13 Plan, which is either 36 or 60 months depending on the borrowers income as determined in the bankruptcy, includes a request to modify the monthly mortgage payment of a mortgage on real property owned by the borrowers.  The borrowers will have to make a payment equal to 31% of their gross income each month as adequate protection payments to the mortgagee, which will include property taxes and property insurance.  Therefore, if 31% of your gross income is more than your mortgage payment including taxes and insurance, then a modification would not be beneficial to you.  That is unless you are behind on your loan payment which will be cured in a modification and your total payment will be 31% of your gross income.  Even if a modification would not be beneficial to you, if you are behind in your payments then a Chapter 13 bankruptcy will help you to catch up with your payments by the end of the plan period and to help you save your home and avoid foreclosure. 

A mediation must be scheduled with the lender within 6 months of filing the bankruptcy petition, as the automatic stay which protects a borrower from foreclosure is automatically terminated at the end of six month period.   A neutral "mediator" attempts to negotiate an agreement between the parties.  If an agreement can be reached, then the mediator will prepare the modification agreement.

Contact our office for more information on this procedure and we will be happy to discuss your options with you.  Furthermore, if you decide that a mortgage modification through a Chapter 13 bankruptcy is to your benefit, we can provide an attorney to attend the mediation with you to make sure your interests are properly represented, as the lender will have its attorney(s) at the mediation.

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IRS TAX TIP 2012-08: Don’t be Scammed by Cyber Criminals

The Internal Revenue Service receives thousands of reports each year from taxpayers who receive suspicious emails, phone calls, faxes or notices claiming to be from the IRS. Many of these scams fraudulently use the IRS name or logo as a lure to make the communication appear more authentic and enticing. The goal of these scams – known as phishing – is to trick you into revealing your personal and financial information. The scammers can then use your information – like your Social Security number, bank account or credit card numbers – to commit identity theft or steal your money.

Click on the link below to read more about phishing information from the IRS.

IRS TAX TIP 2012-08: Don’t be Scammed by Cyber Criminals

Requirements for Obtaining or Renewing your Florida Driver's License

The requirements to obtain a new or to renew a drivers license in Florida have become stringent.  Please make sure that you have all the documents required prior to attempting to either renew or obtain a new Florida Driver's License.  Note that if you renew late, you will have to pay a fine. 

Your name has to be consistent in the identification you provide.  If not, you may have to change your name to the name you are currently using.  I.e., maybe you're using a name that is different from your birth certificate or your name on your social security card. 

All persons requesting a new or renewed driver's license must present the following:

• Proof of Identification
• Proof of social security number
• Proof of residential address

We are seeing an increase in the number of clients whose name must be legally changed prior to obtaining their driver's license.  Visit http://www.familymaritallaw.com/CM/Family-Law/Name-Changes.asp for more information on our name change services or contact our office at (813) 672-1900, if you reside or work in Hillsborough County.

Furthermore, if you want to obtain a Florida I.D. Card, these same requirements apply and, unfortunately, you cannot obtain an I.D. online. 

http://www.flhsmv.gov/ddl/firstflorida.html