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Category Archives: Blog

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Grandparent Rights in Arizona

If you are a grandparent, you may be entitled to visitation with your grandchild. The starting point is the United States Constitution. A major case, Troxel v. Granville, 530 U.S. 57 (2000), requires that the decision of the parent be given “special weight” when it comes to determining whether and when a grandparent is permitted to see their grandchild. However, this right is not absolute, and some Arizona appellate court decisions have clarified what the U.S. Supreme Court case means in practice.

There is a presumption that a fit parent acts in the best interest of his child. But this is a rebuttable presumption. The presumption can be overcome, depending on the specific situation.

Importantly, in recent years the Arizona Supreme Court rejected the argument that for a grandparent to overcome the presumption, the grandparent must show that “substantial harm” to the grandchild would result if there were no visitation or extremely limited visitation. This would have created an extremely high hurdle to overcome, and luckily our Arizona Supreme Court wisely refused to set the bar that high.

The grandparent visitation law in Arizona usually applies only if one of the legal parents is deceased or has been missing for three months; the child was born out of wedlock and the child’s legal parents are not currently married to each other; or the marriage of the parents has been dissolved.

After one of the above conditions has been met, you will then turn to the issue of whether grandparent visitation should be awarded and to what extent. An argument can be made under the law that the grandparent is absolutely entitled to visitation if logistically possible, appropriate, and the child is residing with the parent through whom the grandparent claims a right of access to the child.

In case the court rejects the argument of an automatic entitlement to grandparent visitation (this argument has not, as of early 2021, been addressed by the Arizona appellate courts), the grandparent should also show that grandparent visitation (or even great-grandparent visitation) should be ordered even under the stricter permissive standard because the statutory factors have been satisfied.

The judge is supposed to look at all relevant factors, but some of the required factors are the historical relationship between the child and the grandparent; the motivation of the grandparent in seeking visitation; the motivation of the parent objecting to visitation; the quantity of visitation time requested and the potential adverse impact it could have; and the benefit of maintaining a relationship with the deceased parent’s extended family (obviously, only if that parent is deceased).

It is also important to keep in mind that if you are a grandparent you must file your request for visitation in the same court case that the grandchild’s parents got divorced in if the parents are divorced.

Finally – and this is very important – you will have a major advantage if both parents are alive and one of them sides with you. In that case, the presumption discussed above – that a fit parent acts in his child’s best interest – may not apply (because it has been “canceled out”), and it should then become much easier to obtain visitation with your grandchild.

Grandparent cases, although notoriously difficult and uncertain, are becoming increasingly common, and it is important to know how to navigate them properly.

Please contact Thomas Law Office if you would like to explore whether you have a good case for grandparent visitation.

My Client Service Approach – Low Volume, No Chatbots, No Gatekeepers

There is a trend in the legal profession right now to embrace technology to the greatest extent possible. This is a good trend generally. Using technology to increase efficiency often results in lower legal bills to clients, faster preparation of documents, and reduced rates of typographical errors. I employ appropriate technology for these very reasons. I have efficient systems in place, which free me to provide better client service.

However, as with most things in life, too much technology can be a bad thing. I noticed that law offices are increasingly putting chatbots or live chat options on their websites and/or use automated follow-up texting and email systems for prospective and even actual clients. I find this trend to be troubling, because it frees up attorneys to take on even more cases, which probably means their energy and attention is spread more thinly than before. I have noticed this in the past with firms that employ a large staff. The staff often handles as much as it can, and the assigned attorney reviews and signs off on documents and other work performed by assistants, paralegals, and associate attorneys.

My approach is different. I maintain a lower caseload, and as a result I believe I am more accessible to my clients. The number one complaint clients have about their attorneys is the attorney’s failure to return their calls or emails in a timely fashion. It appears that this poor communication occurs primarily because many attorneys are overworked, jumping from one case to the other, making as much money as possible in the most efficient way using staff and fancy technology. They get bombarded with calls and try to get their staff to handle as much of the communications as possible. When you retain the services of a specific attorney, you probably want that attorney to be doing most of the work on your case and be intimately knowledgeable with your case.  

I choose to have a smaller caseload than many attorneys. I have been told that some family law attorneys have caseloads of up to 100 clients at a time. Many have 50 or more. My caseload is always far lower than that. By maintaining a smaller caseload, I am able to earn a respectable living while at the same time provide excellent client service. I do not have to pay several staff members a total of $200,000 or more, nor the expensive office and furniture that goes with it. I keep my expenses to a minimum, so that I won’t need dozens of cases just to pay overhead. Also, I set aside sufficient time for my personal life so that I can recharge and be ready to devote the necessary energy to my client’s cases when I get back to the office. And I am easy to reach. My policy is to return calls and emails within one business day, usually the same day. I have heard of clients waiting more than a week for a return call or email from their attorney.

Although it might be convenient to visit a website at 8:00 p.m. and instantly chat with a website robot (“bot”) or call center employee about your case, there is no substitute for having a full discussion with the attorney you are interested in. You may be in a rush to find an attorney immediately. But unless you are up against a firm deadline, you may have more time than you think. Use that time to find an attorney whom you feel is a good fit for your case. Ask yourself if this person is likely to be easily accessible after you pay the large retainer, or whether you are going to be encouraged or even required to interface with bots, client portals, secretaries, assistants, paralegals, law clerks, interns, or others. Does the office seem busy? Did the attorney seem distracted or rushed? It is important to find an attorney who will not only advocate in an effective way for your interests, but someone who is responsive and will take the time to explain things to you as you move through the highly emotional and adversarial litigation process.

Please call my office for a consultation to discuss your situation in detail. I promise you that you will work closely with me, your attorney. I will not hand you off to others and then see you at the courthouse when it is time for trial.

My Spouse Filed for Divorce. What Can I Do to Stop the Divorce?

I want to try to stop my divorce. What can I do?

In Arizona, either spouse can obtain a divorce for any reason – unless the spouses have a covenant marriage, but less than one percent of couples in Arizona have a covenant marriage. One option is to try to convince your spouse to not file a case and opt instead for marriage counseling. If the case has already been filed, you can ask your spouse to dismiss the case and try marriage counseling. A divorce case can be refiled many times. I once had a client whose wife had filed six times to divorce him, and every single time she dismissed the case and they remained married until he died.

Another option to try is to ask your spouse to file (or convert an existing divorce case to) a legal separation case. Legal separation works in much the same way as a divorce, because all of the same issues are addressed, such as division of assts and debts, spousal maintenance, custody and parenting time, child support, etc., but at the end of the case the parties are still technically married. If the parties later choose to undo the legal separation case, they can file the proper paperwork with the court and resume their relationship as if nothing had every legally happened.

If your spouse, like most who file for divorce, seems obstinately fixed on ending the marriage, one desperate attempt you could make would be to file a conciliation petition. In Arizona, you can file a petition for conciliation if it has not been more than 60 days since the divorce petition was served on you. Exceptions apply, and the topic of conciliation court will be addressed in a separate post. For now, what you need to know is that if you timely file a petition for conciliation in your case, a “freeze” goes into effect and the parties are required to participate in marriage counseling. Again, this can get tricky so refer to the future post on conciliation services and read the relevant statutes (starting at A.R.S. §25-381.01) before embarking on this course of action. Obviously, if you have our office on your side, we will take care of all the conciliation petition and other legal filings and make sure that things are done correctly so that you can focus on potentially healing your marriage rather than complying with legal requirements.

Even if you’ve tried everything, including conciliation services, and your spouse is still demanding a divorce, you can make one last effort to save the marriage by demanding a trial on the issue of whether the marriage is really irretrievably broken. A.R.S. §25-316 requires a judge to hold a trial and make a finding on this issue. If you believe in your marriage, you do not have to concede or untruthfully state that you believe it is irretrievably broken. Make the judge do his or her job of making a formal finding that the marriage is broken and issue a divorce over your objection. You will then have a clear conscience that you have done everything legally possible to save your marriage. This can be particularly important to Christians or people of a few other religions that prohibit or strongly discourage divorce. The bad news, unfortunately, is that if the other spouse wants a divorce there will be no way to escape it in the long run. Eventually, a judge will let them out of the marriage. The laws were changed in the 1970s across our country to encourage a wave of divorces. The 1960s and 1970s were a time when much was done by our ruling elites to break apart families and encourage loose morals. We must now deal with the fallout of those who betrayed our once stable and orderly society. Having Ron on your side will help you navigate through the mess. Even if you cannot obtain success in terms of maintaining your marriage, at least you’ll be maximizing your odds of a favorable legal outcome. Call use today for a consultation to discuss your marriage and the legal options available to you. We also can refer you to excellent therapists who do not push divorce down the throats of their often naively trusting patients, which many therapists and counselors have a reputation for doing.

Support HB 2153!

Call your local representative and urge the representative to support HB-2153. This bill is helpful to fathers because it would change the law by making it harder for judges to vary from an equal parenting time plan in contested child custody cases.

Currently, the law says that it is the public policy of Arizona that it is in a child’s best interest to have substantial, frequent, meaningful, and continuing parenting time with both parents and to have both parents participate in the decision-making about the child.

The current law is already an improvement over the prior law, which had left the matter of how to define the “best interest of the child” completely up to the judicial branch of government.

However, even the current law is not strong enough. Based on anecdotal evidence from conversations with other family law attorneys and observation of judicial rulings, it still seems that judges not infrequently tend to err on the side of the mother when all else is equal.

HB-2153 would require that a judge award substantial, frequent, meaningful, and continuing parenting time to both parents and give both parents the right to participate in the decision-making about the child, unless – and here’s the specific language HB-2153 adds to the current law – the judge find that there is “clear and convincing” evidence to the contrary. This is a very high standard for mothers to overcome.

In the law, there are generally three evidentiary burdens of proof. The first is the one many of us are familiar with: “beyond a reasonable doubt.” This is the highest evidentiary standard and is the one applied in criminal cases. There must be no reasonable doubt at all. Essentially, this means a judge or jury needs to be 99% certain that the person committed the crime.

Another standard of proof is “preponderance of the evidence.” This means that the judge only needs to find that there is a 50.1% chance that the mother is correct regarding why she should have substantially more parenting time than the father. As you can imagine, this easy evidentiary standard makes things very hard for a father in family court. If the judge sides with the mother and gives her the majority of the parenting time, the father’s appeal is likely to be denied, because appellate judges give great deference to the trial judge who heard the testimony and assessed the credibility of each party and that party’s evidence.

HB-2153 would change the standard to a “clear and convincing” standard of proof. To meet this burden, the mother must prove her allegations by a 75% or better standard. (Technically, there is no specific percentage designated; this specific percentage is just being stated to give you an idea of the much greater burden of proof this is than in general civil cases.)

This is “clear and convincing” standard of proof is a much higher standard of proof than the current “preponderance of the evidence” standard, and is likely to result in far few mothers getting the majority of the parenting time in custody trials. And in those cases where the judge still sides with the mother, the father should have an easier time attacking the ruling on appeal.

So, I repeat: Call your local representative and urge the representative to support HB-2153. Then urge your friends and family to do the same. This change in the law would be a great development for fathers.

How Are Parenting Plan Schedules And Details Worked Out?

Who Works Out The Specific Schedule And Details For The Parenting Plan?

If the parents can agree on a parenting time schedule, the judge will usually sign off on it. There are certain things that are required to be in a parenting plan before a judge will approve it. Your attorney will be better able to guide you on this. Judges do have the ability to object to a parenting plan, although that is relatively rare.

In terms of the kinds of parenting plans that are typically seen in family court, one of the most common ones is the 5-2-2-5 equal parenting time schedule. The 5-2-2-5 equal parenting time schedule works like this: one parent has two days that are the same every week. The other parent has two days that are the same every week. The parents then alternate weekends. Typically, parent A has Mondays and Tuesdays, parent B has the children on Wednesdays and Thursdays, and the parents alternate Fridays through Sundays. In this scenario, parent A would have the children Monday and Tuesday in week 1, and Friday through Tuesday in week 2. Parent B would have the children from Wednesday through Sunday on week 1, and on Wednesday and Thursday in week 2. This works out to fifty percent of the parenting time to each parent.

There are other kinds of equal parenting plans as well, although they are less commonly seen, such as the alternating weeks schedule or the 4-3-3-4 schedule. This is a schedule whereby each parent has three days each week that are always the same, and the remaining day is alternated, such that a parent will have four parenting time days in one week and three parenting time days the following week. The patter then repeats itself. There are also many unequal parenting time plans. The plan that works best for the children in light of the parents’ work schedules, the children’s school location, the children’s extracurricular activities, and other factors, is the one that the judge is most likely going to approve. The key is to find parenting plan that is not too confusing for the parents and children and will work well for the children and the parents.

Long distance parenting plans are used when the parents live in different states or different counties. There can be lots of fighting over who should be responsible for the cost of transportation in those long distance parenting situations. Another thing that parenting plans need to address is the holiday parenting schedule and the school break/summer break schedule. Some parenting plans will remain the same in the summer whereas others, especially long distance parenting plans, will change during the summer school break period because the children will have an opportunity to spend more time with a parent that they might not have lots of access to during the school year.

Another important aspect of a parenting plan is telephone or video access to the children. The frequency, duration, and dates of the calls should be carefully considered and detailed in the parenting plan. In a good number of cases, especially if the parents are working well together in their co-parenting relationship, the parents will deviate from the parenting plan from time to time or even indefinitely if they agree that a different plan will work better for them. If any kind of dispute arises later, they can always demand that they go back to the original parenting plan, because unless the parenting plan is modified formally, it is still an order of the court and is enforceable.

However, caution should be exercised, because if a father is given much more parenting time than the parenting plan and court order prescribe, he should receive a reduction in his child support obligation. The only way to do this is to modify parenting time and child support formally. A parent cannot retroactively seek an adjustment in child support in Arizona. So it is important to remember to modify the parenting plan as soon as possible, which can be done by a simple stipulation that is filed with the court, if the new plan is going to be in place for a long time. Keep mind that there are limitations on how frequently a petition to modify parenting time can be filed. The general rule is one year, but there are exceptions, so it is important to obtain legal advice about whether a modification can be requested earlier than one year after the most recent modification order.

There are many other aspects of parenting plan which further need to be considered. The important thing to know is that there are a variety of parenting plans out there and the one that the judge is likely to approve of is the one both parents agree is best, if indeed it is in the children’s best interest.

If you need information on How Parenting Plan Schedules And Details Are Worked Out, call the Thomas Law Office, PLC for a consultationand get the information and legal answers you’re seeking.

Can Someone Lose Their Home If They File For Chapter 7 Bankruptcy?

A person can lose their home if they file for Chapter 7 bankruptcy protection. But don’t panic. In Arizona, it is rare to see a person lose his home because he filed for Chapter 7 bankruptcy protection. This is because the homestead exemption most people in Arizona is $150,000. What this means is if your equity in the property is less than $150,000, there’s a good chance that you’ll be able to keep your house. However, if your equity is higher than $150,000, you could lose the house. You must be residing in the house in order to get the homestead protection. If you reside elsewhere or have a second home, you cannot apply the homestead to more than one of the properties.

Another problem arises when a person is behind on payments in a Chapter 7 bankruptcy. If that happens, the creditor will file what is called a motion to lift the automatic stay. The automatic stay is the protection that automatically goes into effect in Chapter 7 cases when the case is filed. It prevents the creditor from suing the debtor, maintaining an already-filed lawsuit, garnishing wages or bank accounts, foreclosing on real estate, etc. The creditor will ask the judge for permission to pursue a foreclosure action even though the Chapter 7 case has been filed. The judge will almost always say yes.

The creditor will then proceed with a foreclosure or trustee sale, and you will eventually lose your property unless you can negotiate a deal with your lender. The other option in that situation is to convert your case to Chapter 13 if you qualify, and force the lender to accept payments on the arrears (the missed payments) over a period of three to five years. But for the vast majority of people who file for Chapter 7 bankruptcy protection in Arizona, they are able to keep their homes (and often their cars, too). You should obtain a consultation from a bankruptcy attorney to make sure that you will not lose your home if you file for Chapter 7 bankruptcy protection.

If you are facing foreclosure before you file for bankruptcy protection, you’ll need to consider a Chapter 13, because that may be the only way you can force your lender to let you make up your missed payments over a three to five year period of time. There is much at risk in bankruptcy cases and you’d be unwise to file your own case. Mr. Thomas has seen people lose homes, inheritances, valuable assets, and large sums of money because they were being penny wise but dollar foolish. Save up your money and have a professional handle it for you.

Does A Person Have Any Options Regarding Liquidation Of Secured Debt In A Chapter 7 Bankruptcy?

One of the decisions you will have to make if you want to file a Chapter 7 case but you know that you will lose certain secured assets if you so, is whether you want to attempt to work out a deal with the unsecured creditors rather than file the Chapter 7 bankruptcy. A common example is a person who owns a home and has equity in that home that is above the exemption amount. For example, if your exemption amount is $150,000, the house is worth $300,000, and the loan balance is $100,000, you will have $50,000 in equity. The bankruptcy trustee in a Chapter 7 case may force the sale of the home, pay the $100,000 loan balance, give you the next $150,000, and distribute the rest of the money to the unsecured creditors.

Rather than losing your home in that manner, you could sell the home and work out deals with your creditors. This is very tricky and could backfire easily. We at Thomas Law Office have lots of experience working out settlements with creditors. However, far more often than not, it will make more sense for a person in this kind of situation to file a Chapter 13 bankruptcy. Another option in this example would be for the client to find a relative or some third party who will give or loan them the funds to “buy back” the unprotected equity ($50,000, or probably less if a deal is negotiated). This would enable the person to avoid a Chapter 13 bankruptcy – which most debtors would prefer to avoid if possible because of the long amount of time, higher cost, and other inconveniences – and still keep the home. Also, it is important to analyze whether the asset really can be seized by the Chapter 7 trustee.

There can sometimes be legal or practical obstacles that would significantly reduce the likelihood that the trustee will actually pursue the asset. Because the trustee is paid on a sliding scale percentage basis for assets he can take from you and distribute to your unsecured creditors, he has an incentive to try to bluff you into believing that he will seize and sell the asset unless you agree to pay a large sum of money to keep it. An example that comes to mind is a case we had many years ago. The client owned a bakery. The Chapter 7 trustee send a very threatening letter indicating that he would be seizing and selling the bakery. After a careful analysis by our office, we determined, with the help with a business valuation expert, that the bakery would be very hard to sell for at least a year or two because of major road construction and a mass transit system that would be installed.

The result would be much less foot traffic and significantly reduced sales. The trustee was very aggressive and did not care what we said to him. So we elected to call his bluff and sat back to see if he actually followed through. He didn’t. Our client got to keep the bakery without having to spend a single penny to the trustee or the bankruptcy court. It is vital that you have an attorney on your side when you undertake a major legal and financial step such as the filing of a bankruptcy case. There are traps for the unwary, and there are ways of protecting assets in a legal way that would probably never occur to you if you don’t have a deep understanding of the bankruptcy code, a knowledge of the cases interpreting the code, and the experience of having seen many situations in real life that enable you to accurately predict what is likely to happen with regard to various issues in your case.

For more information on Losing Your Home In A Chapter 7, an initial consultation is your next best step. Get the information and legal answers you are seeking by callingtoday.

Why is The Hearing Held In Front Of A Chapter 7 Bankruptcy Trustee?

There is a hearing in a Chapter 7 bankruptcy case. It is referred to as the “Meeting of Creditors.” The name of this hearing makes it sound worse than it is. It is actually a very easy process. Creditors rarely show up at the Meeting of Creditors. Sometimes, the creditors who show up are small-time creditors who think they are required to show up because they received notice of the Meeting of Creditors. In such situations, the Chapter 7 bankruptcy trustee will ask these well-meaning but uninformed creditors if they have any questions for the Chapter 7 debtor. They virtually always say no, and the trustee thanks them for attending and tells them they are free to leave when they are ready to do so.

On the other hand, a creditor is likely to appear at the Meeting of Creditors if that creditor believes you attempted to defraud that creditor or if that creditor has specific information that is needed from you, such as the location of secured property or other assets, information regarding the condition of various assets or secured property, the financial circumstances of the debtor at the time any application for credit was signed, etc. In business bankruptcies, it is quite normal for at least some creditors to appear for the Chapter 7 Meeting of Creditors. Sometimes, if the trustee is seeking to pursue claims against the Chapter 7 debtor, the trustee’s attorney may show up and ask questions of the debtor.

This is just one example of why it is critical to have representation at every phase of your bankruptcy case, because there may be traps that you can easily avoid with proper legal advice. With an advocate sitting by your side, it is unlikely that the trustee’s attorney is going to overstep the normal bounds of questioning. There is no judge present at the Chapter 7 Meeting of Creditors, so it is important to have an advocate by your side to protect you if the questioning goes too far. For most people, though, the Meeting of Creditors in a chapter 7 case goes smoothly and quickly.

The hearings usually are set every half hour, and during the half hour session, anywhere from six to ten Chapter 7 bankruptcy debtors will be questioned. The trustee will make the debtor take an oath to tell the truth, under penalty of perjury. The trustee will also verify the identity of the debtor, usually by examining the driver’s license and comparing it to the social security card. Most trustees will also administer a series of instructions at the beginning of the session that the debtors must follow. These include things like being truthful, making sure that the financial management course is completed in a timely fashion, having ID ready when the approach the trustee’s table for questioning, turning over tax returns when the next tax returns are filed, turning over tax refunds the next time they are received, etc. The trustee in Arizona Chapter 7 bankruptcy cases is the person who will ask questions of the debtor. A decade or two ago, it was common for the Chapter 7 bankruptcy client’s attorney to ask the questions of the Chapter 7 debtor. But now it is the trustee who controls the questioning.

The questions are usually the same for everybody, as well as some specific questions that are particular to that person’s case. The standard questions pertain to whether the Chapter 7 debtor took the oath to tell the truth; whether the Chapter 7 bankruptcy debtor reviewed and signed all the documents that were filed; whether the Chapter 7 bankruptcy debtor admits that all information in the petitions and schedules are true and accurate; whether the Chapter 7 filer has any changes that need to be made; whether any amounts of money are due to the Chapter 7 debtor; whether the Chapter 7 debtor has resided in Arizona for the requisite jurisdictional period; etc.

The standard questions typically only last about five minutes. If there is a joint-debtor in the Arizona Chapter 7 bankruptcy case, the trustee will next turn to that person and ask if his/her answers would be the same as the ones just given by his/her spouse. The trustee then may ask a few specific questions that only the debtor would know the answer to. The Meeting of Creditors is then concluded. The next step is for the Chapter 7 bankruptcy client to wait another 60 to 120 days for the discharge notice to be issued. The discharge notice is the document that tells the debtor and creditors that all debt that is able to be erased in the Chapter 7 bankruptcy has been erased. It’s a great feeling to get that notice in the mail!

When And Where Does The Hearing With The Chapter 7 Trustee Take Place?

In a Chapter 7 bankruptcy case, a hearing is held. That hearing is known as the “Meeting of Creditors.” Rarely to creditors actually show up at these hearings, but they are permitted to if they so desire. Often, the only creditors who show up are small business owners who think they are required to show up because they received a hearing notice in the mail. What they don’t realize is that the hearing notice they received in the mail is merely informational. They may attend the Meeting of Creditors if they so desire, but they usually will only be wasting their time unless they have important questions for the debtor or if they have reason to believe the creditor may have defrauded them or omitted material information in the bankruptcy petition, schedules, and/or statement of financial affairs.

The Meeting of Creditors usually takes place approximately 30 days from the date the bankruptcy case is filed – at least in the Phoenix area. Other locations may have different timeframes. But any chapter 7 case filed in Maricopa County is virtually always going to result in a Meeting of Creditors at the Bankruptcy Court in Phoenix, which is located at 230 N. First Avenue, Phoenix, Arizona. When you arrive at the courthouse, you will need to bring two forms of ID with you. There are two lists from which you must choose. You must choose one form of ID from one column, and another form of ID from the other column. Most people choose to take their driver’s license and Social Security Card to the Meeting of Creditors. The Meeting of Creditors usually takes only a few minutes, but you could be waiting a long time if the trustee is running behind schedule.

The Meeting of Creditors will take place in a hearing room, not in a courtroom even though the location is at the Bankruptcy Court in Phoenix. Cases filed in which debtors live in Pinal County are usually held in Florence. Cases filed in which debtors live in Yavapai County are usually held in Prescott. Cases filed in which debtors live in Coconino County are usually held in Flagstaff. Other hearings are held in other locations, based on the county the debtor resides in, such as Yuma.

For more information on Chapter 7 Bankruptcy Trustee Hearing, an initial consultation is your next best step. Get the information and legal answers you are seeking by callingtoday.

What Kind Of Debt Gets Wiped Out In A Chapter 7 Bankruptcy?

Most debt can be erased in a Chapter 7 bankruptcy. The standard kinds of debts that are erased in a Chapter 7 bankruptcy include credit card debt, medical debt, personal loans, auto repossession debt, real estate deficiency debt, most “old” tax debts, payday loan debts, debts owed to former friends, auto accident debts, debts related to many kinds of lawsuits such as breach of contract, sexual harassment, discrimination, homeowners association debts that predate the bankruptcy, and various other types of debts. There are various debts that cannot be erased in a Chapter 7 bankruptcy. These are covered elsewhere on this website.

But the most common kinds of debts are usually ones that can be erased in a Chapter 7 bankruptcy. During your initial consultation, the attorney will screen your situation for the various kinds of debts you have, and assess whether any of them could be ones that cannot be erased in the Chapter 7 bankruptcy. A common question that comes up in consultations is whether in a Chapter 7 case there is a minimum or maximum amount of debt that applies. In other words, potential bankruptcy filers often wonder whether they have too little or too much debt to qualify for a Chapter 7 bankruptcy. Almost always, the answer is no. There is no specific minimum or maximum that applies.

The trustee will examine your case to see if you are abusing the Chapter 7 bankruptcy process. For example, if your income is $100,000 per year and you have only $10,000 in debt, you are likely going to have a problem if you try to get a Chapter 7 bankruptcy past the Chapter 7 bankruptcy trustee, because with that level of income, unless extraordinary circumstances apply, you should be able to pay off that amount of debt in a relatively short period of time without needing to invoke Chapter 7 bankruptcy protection. It is even rarer for someone to have too much debt in a Chapter 7 bankruptcy case. We have not seen one at our office and Mr. Thomas has been practicing bankruptcy law for over twenty years.

What Kind Of Debt Is NOT Forgiven In A Chapter 7 Bankruptcy?

People sometimes have the misconception that all debts can be erased in a Chapter 7 bankruptcy. In a Chapter 7 bankruptcy, there are certain debts that cannot be forgiven. Some of the more common debts that cannot be erased in a Chapter 7 bankruptcy are child support debts, alimony debts (more often referred to as alimony or spousal support), many tax debts, many government fines, many student loan debts, overpayments of government benefits (such as unemployment benefits, social security, welfare, etc.), marital property settlements, federal criminal restitution debts, etc. There are other debts that cannot be forgiven but these are less often seen and will not be addressed here.

It is of utmost importance to seek advice from a competent bankruptcy attorney before filing your case because there are exceptions to the exceptions that may apply in your situation. For example, although most student loan debts are not dischargeable, some of them indeed can be discharged in a Chapter 7 bankruptcy. A very easy example is a person who is permanently disabled and cannot afford to repay the loan. A bankruptcy judge would very likely permit that student loan debt to be discharged. But action must be taken. If you do nothing in the example just provided, the debt will outlive the bankruptcy case (although you may be able to reopen the bankruptcy if you happen to realize this possibility after the fact).

You will need to file an “adversary proceeding,” which is like a mini lawsuit within your Chapter 7 bankruptcy case. The student loan lender would need to be sued, and if the student loan lender objects to the discharge of that student loan debt – which is likely to be the case, since most lenders have massive financial firepower and will use it against you to deter other debtors for daring to fight them – you will need to present your case to the bankruptcy judge, who will make specific findings as to whether the student loan debt can be erased in the Chapter 7 bankruptcy. Another example of a debt that is often one that cannot be erased in a Chapter 7 bankruptcy is a tax debt.

However, some tax debts can be wiped out in a Chapter 7 bankruptcy case. The very general rule – and this is a general rule so be careful about the exceptions – is that the tax debt is not dischargeable if it is less than three years old (the calculation of the age of the tax debt itself is a tricky thing to do), the return for that tax debt was filed less than two years ago, or the tax debt was assessed less than 240 days before the Chapter 7 bankruptcy case is filed. But if, for example, it is a very old debt – let’s say 5 years – and you filed your return on time and you did not attempt to evade the debt and none of the other factors (that have not been listed here because they are too numerous) are present, you should be able to wipe out that tax debt in your chapter 7 case.

However, it is often wise to contact the Internal Revenue Service to make sure they agree that it is discharged in the Chapter 7 case, because if they refused to admit that it has been discharged, it is often a good idea to file an adversary proceeding to eliminate any doubt. What you want to avoid is a situation where you file your bankruptcy on an old tax debt, assume it has been wiped out, and then years later the Internal Revenue Service comes after you hard for that tax debt. You will then have to fight with the Internal Revenue Service at an unexpected time, and that time may not be very convenient for you.

For more information on Debts Forgiven In A Chapter 7 Bankruptcy, an initial consultation is your next best step. Get the information and legal answers you are seeking by callingtoday.

Can I Get Divorced In Arizona If I Got Married Elsewhere In The U.S.?

Even if you did not get married in Arizona, you can get divorced in Arizona if you are a resident of Arizona. However, the divorce judge may not have jurisdiction over all the issues in your case. For example, if your spouse resides in a different state with the children, and that spouse has resided with the children in that state for at least six consecutive months, the other state is the state that has jurisdiction over the child-related matters. Even if your spouse does not reside in the other state with the children — i.e. if the children reside here in Arizona with you, but the other spouse resides elsewhere and if that spouse has never resided in Arizona, the Arizona court may not have jurisdiction over the other spouse with regard to child support.

These situations need to be analyzed carefully because there are exceptions, and exceptions to exceptions, but if you, your spouse and your children all reside here and you have all resided here for the past six months, then Arizona is probably going to be the location of your divorce case even if you got married elsewhere. If there are no children in common between the spouses, the filing spouse must have resided in Arizona for ninety-one consecutive days before filing for divorce in an Arizona court.

If the parties have no children in common, but one spouse is an Arizona resident and the other spouse is a resident of another state, Arizona may not have personal jurisdiction over the nonresident spouse except the Arizona court always has the jurisdiction to sever the marriage on behalf of the spouse who is an Arizona resident, even if the Arizona court does not have jurisdiction to decide property and spousal maintenance issues.

Again, these are complicated scenarios so these general rules should not be relied upon in the absence of a consultation with an experienced Arizona divorce attorney. But as a general rule, if you and your spouse are residents of Arizona, and your spouse then leaves the state with the children, you must act quickly in order to increase the odds that your case will be under the jurisdiction of the Arizona courts, unless the state to which your spouse moves is much more favorable to you on issues that are in your best interest, in which case your attorney may advise you to wait until that state obtains jurisdiction. That is why it is often a good idea to consult with an Arizona attorney and an attorney in the other state, so that you can analyze the pros and cons of each jurisdiction. Often, the two attorneys will briefly discuss your situation between themselves and reach a unified opinion on which state your case should be filed in.

Regardless, if you have children and you do not want to move to the other state, and if you want lots of parenting time with your children, ordinarily you should move swiftly to file a case in Arizona so that you will increase the chance that the judge will order your spouse to return the children to Arizona. The longer you wait, the more established your spouse and children will become in the new state, and the less likely the judge will be willing disturb their routine.

Can I Get Divorced In Arizona If I Got Married Outside Of The United States?

Even if you did not get married in the United States, you can still get divorced in Arizona if you are an Arizona resident. However, the court may only have jurisdiction to sever the marital ties. The court may not have jurisdiction over the other spouse and the court definitely will not have jurisdiction over property that is located in the other country. International divorce cases are complicated. Figuring out the best way to proceed turns on a variety of factors and it is highly advisable to obtain a consultation with an experienced international divorce attorney in order to determine which jurisdiction would be the correct one in which to file your case.

But if you and your spouse both reside in Arizona, the fact that you got married in the other country makes no difference. You are still entitled to a divorce in Arizona. Whether the other country will recognize the divorce is a different question, and one that must be analyzed carefully with an international divorce attorney if you have plans to move back to that country in the future. Also, if you have children in the other country, you may or may not be able to have custody issues decided in an Arizona court.

Usually the Arizona court will defer to the other country’s court, but there are exceptions that are beyond the scope of this general informational material. If your spouse leaves Arizona and moves to another country with your children, you must immediately obtain a consultation with an experienced international child custody attorney. Time is of the essence in such cases. If too much time passes, you will be forced to litigate in the other country, which could be far more costly, time consuming, biased, and frustrating that anything you would experience in an Arizona court, depending on which country your spouse has moved to.

For more information on Getting Divorced In Arizona, a free initial consultation is your next best step. Get the information and legal answers you are seeking by callingtoday.

Do Children Have Any Say In Custody Matters?

In Arizona, At What Age Does A Child’s Preference Factor In To The Custody Decision?

In Arizona, either parent can request that the child be interviewed, or the judge can order that the child be interviewed. The child most likely will not be interviewed by the judge. Instead, if an interview is even appropriate in a particular case, the child is likely to be interviewed by what is called a Court Appointed Advisor or a Best Interest Attorney.

Court Appointed Advisors and/or Best Interest Attorneys are appointed in cases where either or both parents are alleged to be unfit or unstable, or if there are significant questions about the safety of the environment in which the child is living. The Court Appointed Advisor or Best Interest Attorney will ask the child questions that are geared toward determining how well-adjusted the child is to each parent, how much time the child wants to spend with each parent, and other factors that are important to the issue of which parent the child should be spending the majority of time with. A Best Interest Attorney is always an attorney and cannot be called as a witness in the case, whereas a Court Appointed Advisor is usually a psychologist and can be called as witness in the case. The job of a Best Interest Attorney is to advocate to the judge what is best for the child, even if that position is not good for either or both parents. It is far more common for a Court Appointed Advisor to be the appointed; Best Interest Attorneys are usually appointed only in the most severe cases of allegations of unfitness.

When it comes to the minimum age a child can be in order to be interviewed, the very general rule is that the child needs to be at least 12 years old. However, if good reasons exist, they can be much younger than that when they are interviewed. The more severe the allegations, the more likely the judge will order that a child under age 12 be interviewed if an interview would make sense in that case.

Court Appointed Advisors are often trained in the mental health fields. Many, if not most, are psychologists or social workers. The other context in which a child may be interviewed is a parenting conference. In Arizona, a judge can order the parents to attend a parenting conference. A parenting conference is held with a mental health professional who will meet with both parents, and usually interview the children as well if they are teenagers.

As of 2016, the cost of a parenting conference is $300 per side, although the judge can permit that amount to be paid in installments if appropriate. Something else to know is that older teenagers, ages 16 and 17, generally have a very big say in which parent they want to live with primarily. At that age, it is possible that the judge may actually conduct the interview himself or herself.

Finally, something to be on the lookout for, especially with younger children, is coaching by the other parent. It is relatively common for parents to try to influence what the child says when the child is interviewed. An experienced and skilled mental health professional sometimes will pick up on this and put that information in the report that is required to be submitted to the court. However, many times, this kind of sinister coaching is overlooked. But there are techniques that can be employed to minimize the likelihood of coaching and to expose it if it has been done. Also, independent experts on parental alienation may be needed to demonstrate to the court the degree of psychological influence one parent is exerting on the child in order to get the child to defy the other parent.

It is important for the parent whose child is about to be interviewed to be prepared for how to properly inform the child of the interview and to not discuss the case with the child. Judges get upset when a parent talks to the child about the custody case. Children should not be burdened with such matters. They should be free to live their lives as children and without the emotional turmoil of having to concern themselves about what is going on with the fight between their parents.

If you are not sure whether Children Have A Say In Custody Matters, call Thomas Law Office, PLC for a consultationand get the information and legal answers you’re seeking.

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