Can Trustees Go After Children’s College Tuition Payments?

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.

What Now?

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+

Domestic Violence Injunction vs. No Contact Order

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+

When Can I Stop Paying Child Support?

Most parents who divorce or separate realize that one of them will likely be ordered to pay some amount of child support so long as the child is a minor. This is true regardless of whether the residential parent and the child continue to live in Florida following the divorce or separation. Failing to pay child support can result in the court and/or the State of Florida taking various measures to coerce you into paying what has been ordered by the court.

Over the course of a child’s life, there are several events that can occur. Any of these events can result in a child support order being either terminated or extended.

• When the Child Turns 18: In most cases, a child support order will terminate when the child turns 18 years old. If a parent is paying support for multiple children, the total child support amount owed is normally recalculated as each child turns 18. If a child is still in high school but is not in a position to graduate by the time he or she turns 19 years old, then child support will terminate on the child’s 18^th birthday as well.
• When the Child Graduates High School: Some children may not have started school with other children their age or were held back for a year. If a child is making satisfactory progress toward graduating high school but has not graduated by the time he or she has turned 18, child support will continue until the child does in fact graduate high school (however, if it becomes apparent that the child will not graduate high school before turning 19 years old, the child support obligation may terminate before graduation).
• When the Child has Special or Specific Needs: Where a child has been diagnosed with having medical or other special needs that render the child dependent on the assistance of others, child support may be extended indefinitely. For example, the parent of a child who is unable to work due to physical or mental disabilities and cannot care for him- or herself may be required to pay child support for the rest of the child’s life.

Do I Need an Attorney to Stop My Child Support Payment?

Stopping child support payments is a risky move, even if the child has turned 18 or graduated high school. Failure to notify the proper agencies through the proper channels can result in you being accused of not paying child support. It is therefore advisable to hire an experienced child support attorney to help you with this process.

The family lawyers at All Family Law Group, P.A. are here to help you with all your child support-related questions and concerns. During your free consultation, we can review the facts of your situation and advise you as to whether your child support obligation is eligible for termination. If so, we will help you prepare, file, and argue for a termination of your child support obligation. Contact the Tampa divorce lawyers at our offices in Tampa Bay at 813-321-3421 for a consultation at no charge or email us.

By Lynette Silon-Laguna Google+

What’s Mine is Mine…Right?

One of the standard tasks in any Florida divorce involves separating the couple’s property. In some cases, the parties are able to accomplish this by agreement; that is, they determine themselves which one of them will take a particular piece of property. Where there is no agreement, the judge hearing the divorce action will make this determination. Dividing property between two divorcing spouses is not as simple as finding out to whom a particular item belongs, however. Property division can be complicated and require the assistance of an attorney.

The Basic Goal of Property Division

In a Florida divorce, the goal of a division of the property is for both parties to be awarded a fair and equitable amount of the marital estate or marital property. “Marital property” includes all property that was acquired by either of the parties during the course of the marriage, regardless of who actually “earned” it. So for instance, a wife who uses her income from her job to purchase two cars for the family has purchased “marital property.” If the couple later divorces, the cars are subject to division by the court because they are considered marital property, even though the wife purchased this property herself.

The division of property must be “fair and equitable” – that is, both parties must be treated fairly. This does not always result in an even 50/50 split of the marital property. In the example above, if one car is valued at $12,000 and the other at $15,000, it may be fair and equitable for each party to receive one of the cars in the property division.

Where Problems Arise in Property Division

In certain cases, property that is clearly yours can be subject to division as “marital property.” The assistance of an experienced family law attorney would be necessary to help you protect what is yours. For example, an inheritance you received prior to the marriage would typically remain your property after the marriage as it would be considered “non-marital property.” But suppose the inheritance is substantial (assume $100,000 for purposes of this example) and you deposit this money into a joint bank account used to pay your bills. Or you add your spouse as an authorized user to the bank account where this money is on deposit. In either case, the court may consider your inheritance to be marital property, which would subject it to division by the court at the time of the divorce.

How Can I Protect What is Mine?

The team of Tampa Florida divorce attorneys at All Family Law Group can help you protect your property before, during, and after a marriage. One way is by drafting and entering into premarital or antenuptial agreements, wherein each party agrees who will receive what property if a divorce occurs. We can also advise you how best to separate your property so that it is not lumped together with and considered as marital property. Contact us today at (813) 321-3421 for a free consultation to learn how our Tampa Divorce Lawyers can help you keep what is yours.

By Lynette Silon-Laguna Google+

High-Profile Divorce Attorney Discusses Bigamy

A recent divorce hearing involving Florida U.S. Representative Alan Grayson and his wife of 35 years Lolita Grayson captured the attention of media outlets not only because of Rep. Grayson’s vast fortune (approximately $30 million) but also because of allegations of bigamy leveled against Ms. Grayson. Ms. Grayson is seeking a part of Rep. Grayson’s fortune as alimony. Rep. Grayson, through his attorneys, is claiming Lolita is a bigamist and was legally married to another man at the time she and Rep. Grayson married. This would enable Rep. Grayson to be granted an annulment and deny Ms. Grayson any alimony at all.

Bigamy – What is Florida’s Stance?

A person who, while legally married to another, marries a second spouse is guilty of bigamy under Florida law. The former spouse must be living at the time the second marriage takes place, and in order to be prosecuted as a crime the second marriage must usually take place in Florida. There are several exceptions to the bigamy statute; namely, a person is not guilty of bigamy if he or she reasonably believes the first spouse has died or reasonably believes he or she is legally eligible to be remarried.

Aside from being a criminal act, a spouse who marries another while he or she is still legally married to the first spouse has entered into a void marriage. This type of marriage is not valid from the outset and the legality of the marriage can be challenged at any time. As illustrated in the Grayson case, a void marriage can result in an innocent spouse being denied spousal support even if the two parties have been together for decades.

What Should I Do if I Believe My Spouse is a Bigamist?

Claiming that your spouse is a bigamist is a serious allegation that can have equally serious legal and financial ramifications for you and any children you and your spouse had together. It is best to consult with an experienced family lawyer before proceeding to court, especially if you are the “second spouse,” because:

• If your marriage is found to be void, you will lose any alimony and other benefits you would otherwise be entitled to; and
• Children born in a void marriage are not considered “legitimate” children since the marriage was never valid. The father will have to go through a “paternity action” to be legally considered the father and which action will establish timesharing and child support. If the mother wants to receive child support and other benefits for the children, then she would have to pursue a paternity action.

Bigamy in a marriage is rare; however, it does happen with and without the consent of all the parties. Before you take action yourself, contact a Tampa divorce attorney at All Family Law Group, P.A. We can examine the facts of your particular situation and advise you as to whether your spouse has committed bigamy and what this means for you. We will help you take the best steps for your future and the future of your children. Contact our offices in Tampa Bay at 813-321-3421 for a consultation at no charge or email us.

By Lynette Silon-Laguna Google+

In Sickness and in Health? Think Again.

Think that your marriage can survive a prolonged or significant illness? A new study suggests that, for women aged 51 and over, a serious health complication can increase the chances that their marriage will end in divorce. The study found that there was no significant increase in the risk of divorce if the husband became ill. The study examined over 2,700 marriages involving individuals aged 51 and older and found that there was a six percent increase in the chances of divorce when the wife comes down with a serious illness. The study did not examine which partner initiated the divorce under these circumstances, nor did it ask the specific reason why the couples divorced.

A Serious Illness Followed by a Divorce Creates a Perilous Situation

It is no secret that a divorce can ruin a person’s personal finances. This becomes even more likely when a divorce is preceded by a long or significant illness. It is during these times that retaining the help of an experienced Florida divorce attorney can make all the difference. While it may seem like an expense you cannot afford during this time, it should be remembered that one party can ask the court to order the other party to award him or her attorney’s fees at the conclusion of the divorce. In some cases, a court can even order one party to pay the other’s attorney’s fees on a temporary basis while the divorce is pending.

What Can a Florida Divorce Attorney Do for Me in This Situation?

Some may wonder what good an attorney can do for them when the filing of a divorce is preceded by their own illness. After all, an attorney cannot prevent one spouse from filing a divorce petition against the other spouse any more than an attorney can prevent an illness. But an experienced Tampa, Florida divorce attorney can help you obtain alimony, or spousal support. In certain cases, one party can be ordered to pay some or all of the living expenses of the other spouse. An alimony award is typically entered as part of the court’s final divorce decree, but an attorney may be able to help you obtain spousal support while the divorce is pending.

While permanent alimony – that is, alimony that continues until the recipient either remarries or dies – may soon be a thing of the past in Florida, a spousal support award can help the spouse who was ill make ends meet and get back on his or her feet.

Contact the Tampa Divorce Lawyers at All Family Law Group, P.A. for Assistance

The laws governing alimony are complicated. Beyond needing to show that you have a need for the alimony, you must also show that the other party has an ability to pay alimony (amongst other things). When a serious illness has led to an unexpected divorce, do not leave your financial future to chance. A Tampa divorce attorney can help ensure you receive the alimony you need to get your life back in order. Contact our offices in Tampa Bay at 813-321-3421 for a consultation at no charge or email us.

By Lynette Silon-Laguna Google+

By: Lynette Silon-Laguna  Google

What Amount Child Support Can I Expect to Receive?

Recently, divorcing couple Kenneth Griffin and Anne Dias Griffin of Illinois gained some measure of notoriety after Dias Griffin’s recent court filings were made public. Those filings include a request from Ms. Dias Griffin for over $1 million per month in alimony and child support to support herself, the couple’s three children, and four nannies. The request includes $300,000 for a private jet, $160,000 for vacation accommodations and hotels, $60,000 for office space and a professional staff, and $14,000 for groceries and meals. (Each of these amounts represents monthly amounts requested.) Lawyers for Mr. Griffin claim that Ms. Dias Griffin had unsuccessfully attempted to obtain a similar amount as an alimony award and is now attempting to obtain the amount as a child support award.

Can I Get $1 Million in Child Support?

Most divorced parents who are the primary caregivers for their children do not expect $1 million per month in child support. But some such parents depend on the monthly child support check in order to make ends meet for themselves and their families. Budget-conscious and newly-divorced parents in particular may be unfamiliar with how a Florida court establishes a child support order.

Courts in Florida are required to follow the Florida Child Support Guidelines when calculating a child support order. These guidelines direct the court to consider the net income of the parents as well as the number of children and the healthcare and childcare costs of the child. Florida law sets out a formula that must be used by the court to calculate the child support amount based on this information. The resulting child support amount is a presumed amount, meaning that a court is obligated to order that specific amount unless special circumstances exist. If no such special circumstances exist, the amount is presumed to be enough to support the parties’ children.

What if the Presumed Amount is Not Enough to Cover My Child’s Expenses?

Sometimes the costs of raising a child are greater than the presumed amount of child support. For instance, a child with a medical condition may require routine and expensive procedures or medicines. In such cases, the parent providing care for the child can ask the court to award more support than the presumed amount. A court is able to do so only if it makes specific written findings that show why the court believes the presumed amount of child support is not enough to provide for the care of the child.

We Can Help You Make Sense of Florida Child Support

There is no such thing as a “typical” child support calculation, as each calculation needs to take into account the specific situation of the parties. The experienced divorce and family law attorneys at All Family Law Group can evaluate your particular facts and circumstances and help you understand what child support amount is presumed in your case. Where this presumed amount is inadequate, we will aggressively fight for the child support you need to provide for your children. Contact our offices in Tampa Bay at 813-321-3421 for a consultation at no charge or email us.

By Lynette Silon-Laguna Google+