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Getting rid of a lawsuit in bankruptcy depends on a few factors. One of the main factors includes determining if the liability associated with it is dischargeable. Sometimes a debtor may receive a lawsuit or learn of being sued and ignore it. This can turn into a default judgment giving creditors an upper hand on [...]
Divorce can result from the stress of dealing with marital debt. Bankruptcy and divorce often go hand-in-hand.
Often one spouse wants to file bankruptcy and the other spouse dissents. Thus, the question is what happens with the debt when the husband files divorce by himself?
Answer: The husband is no longer liable on any of the unsecured debt. Not his separate or the marriage's joint debt. Because California is community property state, his separate debt -- incurred while married -- will be owed by the non-filing wife. It is a rough rule. Now, she will have to be concerned about handling repayment of all the debt.
If the couple is in the process of divorce, the family court judge may have some leeway in taking that fact into consideration when awarding other community property and/or spousal support.
Ken Jorgensen, California Attorneywww.fresnobankruptcylawgroup.com
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An important part of making your decision to file bankruptcy is deciding which type of bankruptcy is right for you. For the most part you will be making the decision to file chapter 7 or chapter 13. Although it is possible to “convert” or switch from chapter 7 to chapter 13 or vice versa, it [...]
An important part of making your decision to file bankruptcy is deciding which type of bankruptcy is right for you. For the most part you will be making the decision to file chapter 7 or chapter 13. Although it is possible to “convert” or switch from chapter 7 to chapter 13 or vice versa, it […]The post Choosing the Right Type of Bankruptcy appeared first on Tucson Bankruptcy Attorneys Trezza & Associates.
The automatic stay is one of the reasons why bankruptcy can be a powerful tool in helping you regain control of your finances. It is often seen as a stop sign to creditors or anyone looking to proceed with legal action against you. Whether you are behind on paying your bills or feel repossession is [...]
There are several things that you should not do if you are considering filing for bankruptcy under either Chapter 7 or Chapter 13. One of the things that people do which is a prohibited act is repaying a family member or a friend within a year of filing for bankruptcy. This is known as a+ Read MoreThe post Is there anything I should not do if I’m thinking of filing for bankruptcy? appeared first on David M. Siegel.
In the pre-BAPCPA decision of In re Arispe, 289 B.R. 245 (Bankr.S.D.Fla.)(Mark, C.J.), the court held that a debtor who is a resident in Florida but not a domicile of Florida is entitled to claim the Section 522(d) federal exemptions as the Florida opt-out statute only applies to those domiciled in Florida.
The debtor was resident of Florida but not a domicile of Florida or any State as he was neither a U.S. citizen nor a permanent resident of the U.S. and therefore not able to legally form the intent to remain permanently which is an element of domicile. The Trustee argued that the Florida opt-out statute precluded the Debtor from utilizing the section 522(d) Federal exemptions. The Florida opt-out statute provides that residents of Florida are not entitled to utilize the federal exemptions provided in section 522(d). Florida Statutes, Section 222.20.
The court held that the "point of departure" in this analysis is Section 522(b) and not the Florida opt-out statute. The court noted that Section 522(b)(1) allows a debtor to utilize the federal exemptions "unless the State law that is applicable to the debtor under paragraph (2)(A)....specifically does not authorize.." Paragraph (2)(A) triggers reference to the State law at the place at which the debtor's domicile was located during the 180 days prior to filing or the greater part of the 180 day period. Since the Debtor was not domiciled in Florida or any State during the 180 days prior to filing of the petition, reference to Florida or any other State's opt-out is not initiated to not authorize the debtor to utilize the exemptions of Section 522(d) Federal Exemptions.
The Arispe case was subsequently followed in In re Goldsmith, 2003 WL 295690 (Bkrtcy.S.D.Fla.)(Cristol, J.).
It may be noted that a new provision added by BAPCPA to Section 522(b) may have been inspired by the Arispe decision. New Section 522(b) hanging paragraph provides that "If the effect of the domiciliary requirement under subparagraph [3](A) is to render the debtor ineligible for any exemption, the debtor may elect to exempt property that is specified under subsection (d)."Jordan E. Bublick is a Miami Personal Bankruptcy Lawyer with over 25 years of experience in filing chapter 13 and chapter 7 bankruptcies. Miami Personal Bankruptcy Lawyer Jordan E. Bublick has filed over 8,000 chapter 13 and chapter 7 cases.
Bringing you the most up-to-date news, tips and blogs throughout the web. Here’s your Bankruptcy Update for August 13, 2013 Electric car charging company Ecotality could file for bankruptcy German VFX Company CinePostproduction Files for Bankruptcy Rothstein bankruptcy distributes $95.8M
Brandon Barber recently pled guilty to several charges including money laundering and bankruptcy fraud. He reportedly changed his plea to guilty from not guilty when appearing in court this week for a hearing. While other people were involved in what investigators are calling a real estate scheme, Barber plead guilty to one count of bankruptcy [...]
By ARDEN DALE
As offshore accounts draw greater scrutiny, some financial advisers are having their clients use a special trust as an alternative strategy to shield their assets from potential lawsuits.
So far, 15 states allow the creation of domestic asset protection trusts, which safeguard securities or other assets of the owner. In the past, they weren't widely used and few states allowed them.
One big driver of the trend is that offshore accounts--commonly used to ward off creditors--have grown less popular amid an ongoing Internal Revenue Service crackdown. The tax agency, which also contends the accounts help wealthy Americans evade taxes, has beefed up reporting requirements as well as penalties for violators.
Increasingly, some advisers are having more discussions about domestic asset protection trusts as a matter of course with any client who owns a business, works in a high-risk profession like medicine, or worries that a child may wind up in a divorce.
"We have been seeing a lot more of them," said Edward J. Mooney, managing director of BNY Mellon Wealth Management.
Recently, Mr. Mooney raised the matter with a client who owns a shipping construction business in the energy sector. A boom in the fracking business, which carries the risk of liability over environmental damage, has prompted more use of the trusts, the adviser said.
Anyone who wants to set up a domestic asset protection trust has to be prepared to work with a trustee in the state where the irrevocable trust is established. A client in Illinois, for example, can't set one up in his home state. So an adviser can help find the best state, and work to find a good trustee--usually a corporate trustee--to manage the trust there.
Alaska, Delaware, Nevada, and South Dakota were early adopters of the trusts, and have been the most popular locations to site them.
Illinois adviser Michael C. Foltz has been working with a client who is thinking about selling his electronic parts manufacturing business, but wants to keep his estate from having to pay state estate taxes on the proceeds. Mr. Foltz suggested a trust in a state with no state estate or income tax. He also broached the idea of setting up the trust to protect its contents from future creditors.
"First and foremost, the estate planner is trying to find ways to reduce or eliminate estate tax, and if they can layer creditor protection on top of that, so much the better," said Mr. Foltz, a wealth manager at Balasa Dinverno Foltz LLC in Itasca, Ill., with about $2.1 billion under management.
Robert J. Robes, an estate attorney with Greenberg Traurig in Boca Raton, Fla., said a domestic asset protection trust won't work for someone who sets it up in the face of an impending lawsuit. Instead, it must be in place well in advance of any litigation.
"Be as proactive as you can," Mr. Robes said. "Oftentimes clients react to potential liability when something is starting to bubble up, which is too late."
And don't put assets into the trust that are needed for the family to live on. Instead, think of it as a way to protect a nest egg, he said.
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