As a Constitutional right, bankruptcy has been part of our nation’s financial system from its inception. Businesses regularly use the bankruptcy process as a strategy to move forward, but individuals often are reluctant to avail themselves of bankruptcy. Dealing with debt is an exhausting distraction that can be managed by bankruptcy, yet the stigma attached to it prevents people from taking advantage of the opportunity to wipe the slate. Instead, they pursue alternatives – anything to avoid the dreaded bankruptcy. However, people living in a difficult financial situation should be aware of some of the challenges they might encounter if they go to great lengths to avoid bankruptcy.
Why do people avoid bankruptcy in the first place?
The two most common reasons for avoiding bankruptcy are shame and concern for credit. However, shame can come to a debtor who doesn’t pursue bankruptcy. When the debts pile up, foreclosure, repossession, and garnishment are among the collection strategies used by creditors, all of which are potentially embarrassing and lead to public exposure of financial woes. There is little doubt that credit can be impacted by bankruptcy. In reality, many individuals and couples contemplating a mountain of debt already have factors that likely had or will eventually have a negative impact on their credit. In addition, you can’t start to rehabilitate your credit until you have brought all your debts current. Bankruptcy starts the clock over and lets the debtor start the process of rebuilding credit.
Creditors come at you from all sides.
Individuals and couples in dire financial straits rarely have only one creditor. Utilities, credit cards, mortgage holders or landlords, auto finance, and so many other possible creditors all expect monthly payments. Once one bill falls behind, the rest tend to follow. As a result, the calls from the creditors, or from collections agencies, can multiply quickly. It can be overwhelming to deal with so many demands, and often the most insistent creditor is the least important. A bankruptcy case consolidates all these matters into one, streamlined procedure, and it puts an end to the creditor calls and institutes a fair process for resolving all debt issues. Whether it’s a Chapter 7 or Chapter 13 process, the bankruptcy case will let a debtor work on the big picture instead of being hounded.
Negotiating and resolving credit issues can get expensive.
Every creditor wants their entire debt paid off in full. If payment is late, there may also be additional late charges and interest. If they have elected to pursue legal remedies, they may be entitled to attorney fees. At times, creditors try to resolve the individual debts through negotiation, or work with an agency that can consolidate some but not all the outstanding debt. The time and effort can be enormous. Each creditor is motivated to get as much as possible, and they are not interested in helping debtors to address any other outstanding debts.
Depending on the kind of debt, creditors can force legal proceedings or alternative dispute resolution remedies, all of which present either a risk if undertaken alone, or a cost if entered into with counsel. For example, an eviction process will be before one Judge and a collection case before another, and neither judge will be considering all the other debt – only the specific issue at hand.
In a bankruptcy proceeding, all creditors are subject to the same rules, which are determined by law, making the process much more streamlined and efficient. A Chapter 7 can get wrapped up in a matter of weeks, and a Chapter 13 will set out clear guidelines for the debtor, and, instead of a chorus of creditors, a judge will decide whether the plan is acceptable.
Tapping emergency funds to make payments is risky and expensive.
When faced with a mounting pile of debt, the wish can be to pay it all off by obtaining a loan or finding some other source of funds. Commercial loans are not easy to come by when a person is under water with debt, and the terms will definitely include high interest. Borrowing money from friends or family may not be at as high an interest rate, but the cost for failing to pay could be the loss of the relationship. Some people are tempted to borrow against or cash in their retirement savings. This comes with high interest rates, or tax consequences, steep penalties, the loss of long-term security, and creditors can’t generally get at retirement funds. Depending on the amount of debt at issue, these solutions can result in a worse outcome than the original debt.
When debt has become a problem, it can be hard to figure out how to get out from under it. Before dismissing bankruptcy as an alternative, confer with an experienced bankruptcy law attorney who can help you to strategize the best course forward. Barkley & Kennedy Chartered has been advising Maryland debtors both in and out of bankruptcy for decades. Contact us for a consultation about your situation today.
DISCLAIMER. The material contained on this Website is not offered, nor should it be construed, as legal advice. The material on our Website has been prepared and published for informational purposes only. You should not act or rely upon information contained in these materials without specifically seeking professional legal advice.
"Thoughts from our experience of practicing family and divorce law in Maryland for more than 30 years."
Division of Property in Maryland Divorce
/in Divorce, Family Law/by Brian BarkleyMarital couples share their lives, including their property, and divorce brings this to an end. Instead of the issue of “ours” or “mine,” which often can be a hotly disputed topic on its own, the parties must prove the title, value and marital interest in all property and assets. Here are some basics about marital property for couples facing a divorce.
What is Marital Property?
Under Maryland family law, the presumption is that all assets acquired during a marriage are the marital property of the couple, whether in one or joint names. This includes the equity in a home, retirement assets, bank accounts and investments, and anything purchased with marital funds. While there are some exceptions, the burden is on the party claiming the non-marital nature of the property to prove that the property is not part of the marital estate.
What is Separate, Non-Marital, Property?
There are three major exceptions to the presumption of assets of either party being marital property. Gifts and inheritance received by one spouse are both non-marital property. Property owned by one party prior to marriage also is non-marital property. Since the burden is on the party claiming that property is non-marital, commingling separate property can change its character and make it all, or partially, joint. For example, if one spouse owns a house prior to marriage, and they use marital property (e.g. employment income) to pay the mortgage, then the other spouse acquires an interest in this property. Similarly, if a spouse had a retirement account prior to marriage, the other spouse is entitled to a share of the account that is funded by income or employment benefits during the marriage. Gifts from one spouse to another are marital property.
Tracing Property
Property ownership disputes in a Maryland divorce often involve property that once was one spouse’s separate, non-marital property, but through commingling, it has led to a claim that it is marital property. In these disputes, the title of the property does not govern the issue of marital interest. For example, one spouse may receive a sum of money as an inheritance and place it into a joint bank account. This commingling creates a burden on the party that inherited the funds to prove they still exist and have not been spent, in whole or in part, while the parties had accessed the account. The receipt of an item of jewelry might be in the name of one spouse, but if it was given as a gift to the other spouse, it is marital property.
Equitable Distribution
When the time comes to divide and account for the marital property in divorce proceedings in Maryland, the court uses the principle of “equitable distribution” to make sure that each party receives their fair share of the marital assets. The court can consider issues like the partial use of non-marital property for the purchase or acquisition of marital property to make its equitable ruling. The court has a wide range of factors to consider in the exercise of its authority to divide and account for marital property – equal division of marital property may be the goal of the parties, but the court is not required to make a 50/50 division of marital property. The court can grant a monetary award to one party to account for the unfairness that title of marital property brings to the outcome. This award can be payable in a lump sum or over time. It can divide pensions based upon marital shares and, in limited circumstances, transfer title to real estate, and order other actions to distribute the personal property of the marital estate. Among the various factors that will be taken into account in the Court’s ruling is the use of the property by the minor children of the family.
Equitable distribution occurs once the parties have established and the court has ruled upon, the title, value and the marital nature of all property. If you are considering a divorce, you need to consider what claims you intend to make over property and how these claims will be addressed by the court. You need to know what steps, if any, you should take in advance of the divorce to protect your assets and maximize your claim to marital property. At Barkley Kennedy, we have decades of experience working with clients to obtain their share of the assets. We have offices in Rockville and Frederick, and we are available for a virtual consultation. Contact us to discuss your ownership rights.
DISCLAIMER. The material contained on this Website is not offered, nor should it be construed, as legal advice. The material on our Website has been prepared and published for informational purposes only. You should not act or rely upon information contained in these materials without specifically seeking professional legal advice.
Understanding the “Best Interests of the Child” standard of legal review in Maryland Custody Disputes
/in Barkley & Kennedy Chartered, Collaborative Law, Divorce, Family Law/by Brian BarkleyIn Maryland divorce matters, couples with children often dispute the custody arrangements. The many aspects of raising a child can be a source of disagreement, from physical custody to legal custody, which includes decisions over medical, educational and other important matters. Maryland law is well settled that the “best interests of the child” will determine the court’s decision regarding the custodial rights of each parent. Unlike some other aspects of divorce, the court will consider this standard even in a review and approval of a parenting agreement between the parents, and it can compel a modification of the agreement in some instances, if the court is of the opinion that the best interests of the children are not adequately addressed in the parenting agreement. The “best interests of the child” is a vague directive that has been clarified by the courts, and today, multiple factors are weighed to help the court assess and resolve custody disputes.
Is the Party a Good Parent?
This question is answered by asking even more questions. Is the parent fit? Do they have a good reputation and character? What is their financial status? Can the parent maintain a stable and appropriate home? Will the parent help the child maintain important relationships with the other parent as well as people like siblings and relatives? Does either parent have employment demands that impact their ability to spend meaningful time with the child? Has there been a prior voluntary abandonment or surrender of custody of the child? These questions each need to be answered before the court makes a final determination.
The Specific Child
The court will evaluate the needs of each individual child in weighing and evaluating custodial matters, including their age, sex and health, and in some cases their stated preferences. The court will also look at the child’s relationship with each parent, the number of other children in the household and the potential disruption of the child’s social and school life. Since all these issues vary with each child, the court will make separate determinations with each child in a divorce situation, though it is rare for the courts to order significantly different custody arrangements for siblings.
Coparenting Possibilities
Maryland law prefers to avoid denying a parent some form of custodial access to their child. To this end, a court will consider whether the parents have reached a prior agreement or have expressed a willingness to share custody. Maryland courts usually refer to the situation of both parents having significant time with the children as “shared custody”. The use of the word “joint” is usually associated with the decision-making authority of the parents, such as “joint legal custody”. If shared physical custody and joint legal custody is awarded, the court tailors the order based on the apparent capacity of the parents to communicate productively and to reach shared decisions affecting the child’s welfare. Before concluding that shared physical custody is in the child’s best interests, the court will look at details like the geographic location of each parent and the opportunity for quality time with each parent.
Additional Considerations
In addition to the other categories, the courts look at specific facts that can impact the best interest of the child. For example, the length of separation of the parents may already have had an impact on the child. In addition, custodial rights can impact state and federal assistance and other benefits. Notwithstanding the specific enumerations of the factors the court should consider, the courts will invariably look at any other issues that it determines may be relevant to the best interests of the child.
The Maryland Family Court judge or magistrate making custody decisions in a divorce must balance the facts with the nuances of the personalities and relationships involved. This assessment occurs for every request for custody, and the court will scrutinize the asking parent to see if they are sincere or if there is some other motivation for the request. That being said, the court is interested in making sure that the child has an ongoing relationship with both parents. With the knowledge that these many issues will be weighed by the court, it is important that divorcing parties address them in any custodial agreement they might attempt to reach. If you have concerns about your custodial rights in a Maryland divorce, contact Barkley & Kennedy to set up an appointment. We have raised our own children and have handled numerous custody disputes. We can assist in making you a better parent and having a successful outcome in your custody case. As well, hopefully, we can assist in reducing the negative impact of a custody dispute on your child. We have offices in Rockville and Frederick, and we also work with clients virtually.
DISCLAIMER. The material contained on this Website is not offered, nor should it be construed, as legal advice. The material on our Website has been prepared and published for informational purposes only. You should not act or rely upon information contained in these materials without specifically seeking professional legal advice.
The Hidden Costs to Trying to Avoid Bankruptcy
/in Bankruptcy Law, Barkley & Kennedy Chartered/by Brian BarkleyAs a Constitutional right, bankruptcy has been part of our nation’s financial system from its inception. Businesses regularly use the bankruptcy process as a strategy to move forward, but individuals often are reluctant to avail themselves of bankruptcy. Dealing with debt is an exhausting distraction that can be managed by bankruptcy, yet the stigma attached to it prevents people from taking advantage of the opportunity to wipe the slate. Instead, they pursue alternatives – anything to avoid the dreaded bankruptcy. However, people living in a difficult financial situation should be aware of some of the challenges they might encounter if they go to great lengths to avoid bankruptcy.
Why do people avoid bankruptcy in the first place?
The two most common reasons for avoiding bankruptcy are shame and concern for credit. However, shame can come to a debtor who doesn’t pursue bankruptcy. When the debts pile up, foreclosure, repossession, and garnishment are among the collection strategies used by creditors, all of which are potentially embarrassing and lead to public exposure of financial woes. There is little doubt that credit can be impacted by bankruptcy. In reality, many individuals and couples contemplating a mountain of debt already have factors that likely had or will eventually have a negative impact on their credit. In addition, you can’t start to rehabilitate your credit until you have brought all your debts current. Bankruptcy starts the clock over and lets the debtor start the process of rebuilding credit.
Creditors come at you from all sides.
Individuals and couples in dire financial straits rarely have only one creditor. Utilities, credit cards, mortgage holders or landlords, auto finance, and so many other possible creditors all expect monthly payments. Once one bill falls behind, the rest tend to follow. As a result, the calls from the creditors, or from collections agencies, can multiply quickly. It can be overwhelming to deal with so many demands, and often the most insistent creditor is the least important. A bankruptcy case consolidates all these matters into one, streamlined procedure, and it puts an end to the creditor calls and institutes a fair process for resolving all debt issues. Whether it’s a Chapter 7 or Chapter 13 process, the bankruptcy case will let a debtor work on the big picture instead of being hounded.
Negotiating and resolving credit issues can get expensive.
Every creditor wants their entire debt paid off in full. If payment is late, there may also be additional late charges and interest. If they have elected to pursue legal remedies, they may be entitled to attorney fees. At times, creditors try to resolve the individual debts through negotiation, or work with an agency that can consolidate some but not all the outstanding debt. The time and effort can be enormous. Each creditor is motivated to get as much as possible, and they are not interested in helping debtors to address any other outstanding debts.
Depending on the kind of debt, creditors can force legal proceedings or alternative dispute resolution remedies, all of which present either a risk if undertaken alone, or a cost if entered into with counsel. For example, an eviction process will be before one Judge and a collection case before another, and neither judge will be considering all the other debt – only the specific issue at hand.
In a bankruptcy proceeding, all creditors are subject to the same rules, which are determined by law, making the process much more streamlined and efficient. A Chapter 7 can get wrapped up in a matter of weeks, and a Chapter 13 will set out clear guidelines for the debtor, and, instead of a chorus of creditors, a judge will decide whether the plan is acceptable.
Tapping emergency funds to make payments is risky and expensive.
When faced with a mounting pile of debt, the wish can be to pay it all off by obtaining a loan or finding some other source of funds. Commercial loans are not easy to come by when a person is under water with debt, and the terms will definitely include high interest. Borrowing money from friends or family may not be at as high an interest rate, but the cost for failing to pay could be the loss of the relationship. Some people are tempted to borrow against or cash in their retirement savings. This comes with high interest rates, or tax consequences, steep penalties, the loss of long-term security, and creditors can’t generally get at retirement funds. Depending on the amount of debt at issue, these solutions can result in a worse outcome than the original debt.
When debt has become a problem, it can be hard to figure out how to get out from under it. Before dismissing bankruptcy as an alternative, confer with an experienced bankruptcy law attorney who can help you to strategize the best course forward. Barkley & Kennedy Chartered has been advising Maryland debtors both in and out of bankruptcy for decades. Contact us for a consultation about your situation today.
DISCLAIMER. The material contained on this Website is not offered, nor should it be construed, as legal advice. The material on our Website has been prepared and published for informational purposes only. You should not act or rely upon information contained in these materials without specifically seeking professional legal advice.
Understanding the Maryland Parent Planning Tool
/in Barkley & Kennedy Chartered, Collaborative Law, Family Law/by Brian BarkleyEffective January 2020, the Maryland court created new rules that parties seeking to establish or modify custody of a child must jointly complete and file a form called the Maryland Parent Planning Tool. This form and instructions on how to complete it are given to the parties at the first hearing in a family law matter such as divorce. The deadline to file a Planning Tool with the court is on either a date set by the court; 10 days before a scheduled settlement conference (if there is one); or 20 days before the trial date. If the parties cannot reach an agreement, they are required to complete and file a Joint Statement of the Parties Concerning Decision Making Authority and Parenting Time that clarifies all points of agreement and dispute that the parties were able to reach.
By requiring the parties to cooperate on a plan, the Maryland Courts have several goals:
For the court, parenting plans provide insight into the family dynamic and help make child custody orders and modifications uniform and equitable.
The Planning Tool addresses dozens of issues about the children. It guides the parties through these issues, designating authority for decision making, and allocating rights and responsibilities in areas such as education, health, and vacations. It specifically addresses dispute resolution questions, including the possibility of agreeing to mediation before taking a dispute back to the court.
While thorough, the document concludes with the advice that each of the parties has the right to review the document with an attorney before signing it. An attorney with experience in custodial matters can help a party consider their unique circumstances and propose additional or alternate terms to make sure that their rights are preserved.
When the parties cannot agree, the Parenting Tool helps each party and their attorney to focus on specific disputes and develop the factual predicate for a specific proposal. In reaching a conclusion to the custody questions – through mediation, settlement conference or trial – the Parenting Tool shapes a critical process to make sure that the right matters are addressed.
Due to COVID-19 closures, the Circuit Courts in Maryland have fallen behind on hearings, which means that not all family law matters require the parties to prepare and submit the Parenting Tool or the Joint Statement. For divorces in Rockville, the Montgomery County Circuit Court Family Department oversees these matters, and it is holding a mix of online hearings and hearings in court subject to masking and other safety precautions. If you are unsure whether your case requires this tool, you should confer with counsel. Given the possibility of a deadline to file prior to a hearing, check with counsel as soon as possible.
If you are presently considering or involved in a case in which child custody is an issue, contact the experienced family law attorneys at Barkley & Kennedy, for a consultation.
DISCLAIMER. The material contained on this Website is not offered, nor should it be construed, as legal advice. The material on our Website has been prepared and published for informational purposes only. You should not act or rely upon information contained in these materials without specifically seeking professional legal advice.
Understanding Bankruptcy in Maryland
/in Bankruptcy Law, Barkley & Kennedy Chartered/by Brian BarkleyMany Maryland residents are struggling with the economic fallout from the COVID-19 pandemic, and bankruptcy is a possible solution. Conferring with an attorney (one correctly identified as a debt relief agency) is the best way to decide whether bankruptcy is right for you. Here is some basic information about bankruptcy law in Maryland.
What is Bankruptcy?
Bankruptcy is a debt relief process available to individuals and businesses through a set of Federal laws and regulations. Overseen by a Federal court, debtors file a petition for relief accompanied by detailed information about debts, assets, and income. This triggers a very important protection called an “automatic stay” that prevents creditors from taking any action against the debtor. Depending on the type of bankruptcy petition, the filing starts a specific sequence of events and activities designed to address most of the debt owed by the debtor at the time of filing. While the Bankruptcy Court has ultimate authority over a bankruptcy, usually all of the work done to assess the debtor’s situation and deal with the creditors is done by a designated trustee. The trustee takes charge of some of the debtor’s assets called the “bankruptcy estate”. However, the Bankruptcy Code exempts certain assets that the debtor will be allowed to retain.
What Types of Debts Are Affected By Bankruptcies?
The ultimate outcome of a bankruptcy filing is relief from debt and personal liability, called a “discharge.” Not all debt is dischargeable. Among other exceptions from discharge are child support, alimony, some income tax, and most student loans. This means that the debtor will continue to owe on these debts. On the other hand, debts such as credit card bills, medical expenses, and the remaining balances on foreclosure and car repossession can be discharged. Specific creditors who have rights against a debtor’s property (i.e. mortgage lenders and car loan lenders) continue to have those rights, so even if the unpaid balance is discharged, these creditors can foreclose or repossess the property if the debt is not paid.
Types of Bankruptcy in Maryland
There are several types of bankruptcies authorized for use in Maryland by the United States Bankruptcy Code, but for the purposes of this discussion, we will provide details on those that usually are considered as options for individuals and small businesses.
Chapter 7 Bankruptcy
The first, and most frequently utilized type of bankruptcy, is a Chapter 7 bankruptcy, also referred to as “liquidation bankruptcy.” The use of exemptions to protect assets from being liquidated as part of a Chapter 7 frequently makes the process a quick and painless experience for many individuals. Except in unusual circumstances, following the exemptions, there are no assets left to pay unsecured creditors in a Chapter 7. Chapter 7 is not available to all individuals or married couples – a party has to satisfy a “means test” based on certain categories of income.
The Chapter 7 process is fairly simple. Usually, the only time a debtor needs to appear is for a brief meeting with the trustee, in the presence of your attorney. The meeting for debtors who file in Montgomery County is normally in Greenbelt, and the meeting for debtors who file in Frederick County is in Hagerstown. During COVID-19, these meetings are being held by video teleconference. Most consumer Chapter 7 bankruptcies result in the issuance of the Order of Discharge about 3 ½ months after the filing.
Chapter 13 Bankruptcy
A Chapter 13 bankruptcy requires a debtor to offer a plan to make payments to creditors over the course of 36-60 months before being granted a discharge. That plan needs to be confirmed by the Bankruptcy Court, and it is subject to the objections of creditors. Individuals frequently utilize the Chapter 13 bankruptcy to become current on mortgage obligations to prevent a foreclosure. They also select this type if they have assets that they wish to retain that would be at risk of liquidation under a Chapter 7, or they cannot qualify for a Chapter 7 under the means test. Essentially, Chapter 13 debtors can “buy back” their assets by making payments to creditors. The confirmation process of a proposed Chapter 13 plan is not a simple process. It requires the careful management of an experienced and qualified attorney.
There are other forms of bankruptcy and additional options for debtors to deal with creditors outside of the bankruptcy process. Because of the rules about exemptions, the “means test” and the requirements for a confirmable Chapter 13 plan, bankruptcy should be approached strategically with the assistance of knowledgeable counsel. Barkley & Kennedy has offices in Rockville and Frederick. We are experienced debt relief counsel, and we can advise you on the best approach to managing your specific situation. Contact us for a no-charge 30 minute consultation.
DISCLAIMER. The material contained on this Website is not offered, nor should it be construed, as legal advice. The material on our Website has been prepared and published for informational purposes only. You should not act or rely upon information contained in these materials without specifically seeking professional legal advice.
Bankruptcy and Divorce in Maryland
/in Bankruptcy Law, Barkley & Kennedy Chartered, Divorce, Family Law/by Brian BarkleyFamily financial strife clearly impacts marital harmony, and loss of family harmony can have implications for the family finances. Couples fight about money, and unhappiness can lead to spending money to fill a void. When a marriage is nearing its end, debt of either or both spouses can also have reached a tipping point where protective legal measures are necessary. But which comes first? Divorce law and bankruptcy law both impact the personal and marital assets, debts and finances of a couple, and the interrelationship can be complex and confusing. Here are a few important points to consider.
Timing Between Divorce and Bankruptcy is Situation Specific
There is no one rule for which to file first – divorce or bankruptcy. Instead, there are a variety of considerations. For example, who is filing? Is it one spouse, both spouses as a couple or both spouses for separate debt? The cost of a bankruptcy can be lowered if a couple agrees to wait to divorce until they have filed a joint bankruptcy petition and resolved their collective debt together. However, if one of the spouses qualifies for full discharge under Chapter 7, and the other spouse does not because of the “means test”, then it might make sense to wait until after the divorce or the parties are separated to file a petition in bankruptcy. On the other hand, the joint titling of assets as husband and wife may allow for dramatically greater protection of assets when only one spouse files bankruptcy while married. As a result, substantial equity in a jointly owned home may be protected if only one spouse files for bankruptcy before the divorce decree is entered.
Another consideration is urgency. Are there creditors pursuing collections efforts including legal action or foreclosure? They may not be willing to wait until a divorce is finalized, and an immediate bankruptcy petition will trigger an automatic stay on all the creditor’s actions. This will help protect both separate and jointly owned assets. On the other hand, existing debt can reduce alimony obligations, so it may make sense for a spouse to hold off until the divorce has been finalized before getting the debt discharged.
The goal in deciding the sequence should be the preservation of as many assets as possible, so careful review of assets and debts needs to happen before deciding. Understanding the rules in both bankruptcy and family court with respect to ownership interests and allocation of assets and liabilities will help guide the decision.
Bankruptcy Won’t Discharge Support Obligations
Once a divorce decree is entered, awarding support for children and/or alimony for the other spouse, bankruptcy cannot be used to get out from under these obligations. As creditors of the debtor, spouses, and children get preferential treatment in bankruptcy. In fact, while other creditors may have to wait until the bankruptcy process is complete to figure out if and when they might get paid, spouses can go ahead with some aspects of divorce proceedings in state family court, although the treatment of the automatic stay of bankruptcy varies from county to county in Maryland.
The Role of the Former Spouse in a Bankruptcy
If a couple has divorced, there is a high likelihood of acrimony between them if the divorce was a prolonged, stressful process. This may lead a former spouse to intervene in a debtor’s bankruptcy to speak to the debtor’s character, their possible wrongdoing, or identify assets and obligations that the debtor has failed to report. This impulse is not necessarily a good idea. As we noted above, the debtor’s support obligations cannot be discharged in bankruptcy, any move to increase the debtor’s debts, minimize their assets or possibly prevent the resolution of the bankruptcy through a discharge or a plan will only interfere with the debtor’s ability to meet their support obligations.
However, the non-filing former spouse should still be alert. While support obligations are not dischargeable in bankruptcy, property claims, such as a monetary award can be discharged in Chapter 13 bankruptcies, but not in Chapter 7 bankruptcies. Additionally, if a couple had a joint credit card and either spouse files bankruptcy, the non-filing spouse may find themselves pursued by the credit card company notwithstanding a divorce agreement to the contrary. So, a former spouse should be attentive to the proceedings of an ex filing a petition for bankruptcy, particularly given the fact that deadlines for creditors to assert their rights come to pass quickly.
Debt and family strife are both enormously stressful situations. Resolving these issues through the mechanisms of divorce and bankruptcy can be the right course of action. However, given the complexity of both areas of law, it is important to understand how your particular circumstances can impact the outcome of the proceedings. Contact Barkley & Kennedy for a consultation on your best course of action.
DISCLAIMER. The material contained on this Website is not offered, nor should it be construed, as legal advice. The material on our Website has been prepared and published for informational purposes only. You should not act or rely upon information contained in these materials without specifically seeking professional legal advice.
Getting a Civil Protective Order in a Divorce
/in Barkley & Kennedy Chartered, Criminal Law, Divorce, Family Law/by Brian BarkleyViolence is often an issue in divorce cases. Whether the problem is ongoing, or it is triggered by the initiation of divorce proceedings, spouses find themselves in fear for their safety and looking for a solution. In Maryland, a Civil Protective Order (CPO) can be obtained to shield a person from their abusive spouse. If issued, a CPO can dramatically alter the course of divorce proceedings, so it is important to understand the process, options and implications of a CPO.
The CPO Process
There are multiple steps to obtaining a CPO. A victim of domestic violence, conscious of an immediate, appropriate need begins by filing a petition for a Temporary Protective Order (TPO) with the Maryland District Court in the county where the divorce is pending. If applying after court hours, a person can file for an Interim Protective Order with the District Court Commissioners Office, which is immediately effective but will be promptly reviewed by a judge to determine whether to issue a TPO, which is usually granted. A TPO can address issues including, but not limited to:
As part of TPO, the judge will set a hearing within 7-10 days to determine whether to issue a CPO. The TPO is effective immediately, and it will remain in effect until the hearing on the CPO. Law enforcement will serve the TPO on the abuser.
At the hearing on the CPO, the judge can issue an order that lasts up to one year. To qualify for that order, the victim has to show by a preponderance of the evidence that the abuse occurred and there is a need for the relief being sought. The petitioner is required to attend this hearing for it to become a CPO, and the abuser has the right to attend to present evidence or enter a consent order. Without a consent order, the judge will examine evidence in the form of testimony of both the parties, police reports, photographs, threatening communications, and witness testimony. The CPO can last for up to a year, and in addition to the forms of relief available in a TPO, a CPO can include an order for financial support, possession of a jointly owned vehicle, and other relief the Court may deem appropriate to the situation.
Considerations and Consequences
Before pursuing a CPO, some thought should be given to possible consequences. Both the TPO and the CPO provide for heightened awareness by the police of issues regarding the parties and the street address to facilitate immediate requests for police involvement. Any violations of either order are the basis for criminal charges independent of the initial basis for the orders. For some people, the driving force behind the petition is an event that occurred well before the petition is filed. A victim’s fear may be legitimate, but a judge may question the need for a CPO if there is no evidence of abuse in the recent past. Similarly, if an alleged perpetrator fails to respond to the court summons for the hearing on the CPO, and it is granted, the order may set the stage for a final divorce decree that is distinctly favorable to the victim in terms of support, custody, and division or use of assets.
Even if the alleged abuser appears, when a person becomes subject to a CPO, it may alter the outcome of divorce proceedings. A person subject to a CPO now has a record that is shared with law enforcement, including ICE, which may impact the ability of the person subject to the protective order to return to the country after leaving if they are not a US citizen. While no victim should have to live in fear, pursuing a CPO can make the divorce much more contentious. This translates into expense, increased hostility, and possibly a prolonged process. Because of this effect, if a divorce has already been filed and both sides have retained counsel, it is advisable to consider the option of entering into an agreement that can be approved by the Court as a Consent Order that doesn’t create a record of determination of abuse but provides the protection of a CPO. (i.e. there is no admission of abuse).
Are you considering a divorce where there are issues of abuse? Confer with counsel to decide the best way to proceed. Contact Barkley & Kennedy
If you are in fear of imminent danger and you need assistance, contact the Maryland Network Against Domestic Violence for help in your location.
DISCLAIMER. The material contained on this Website is not offered, nor should it be construed, as legal advice. The material on our Website has been prepared and published for informational purposes only. You should not act or rely upon information contained in these materials without specifically seeking professional legal advice.
Advantages to Working With a Bankruptcy Attorney
/in Bankruptcy Law, Barkley & Kennedy Chartered/by Brian BarkleyFiling a petition for bankruptcy triggers a highly regulated legal and administrative process. If you have reached a point in your life where your debts are causing you to consider filing, you may be hesitant to incur an additional expense in the form of attorney fees. While it is possible to file a petition on your own, there are many reasons to consider working with an experienced bankruptcy attorney. First and foremost, the statistics are clear that individuals filing on their own behalf are much less likely to succeed than those who work with counsel. Here are some additional advantages.
While it addresses a serious problem, bankruptcy is an extreme solution. When debts have piled up, and it seems like there are no other options, consultation with an experienced attorney can help assess the situation. There are debt relief strategies that might be a better alternative, particularly if you have valuable assets, like your home, that might be in jeopardy in a bankruptcy. An attorney can review the big picture and advise on the best path forward. Then counsel can help implement a debt restructuring plan short of bankruptcy or proceed with bankruptcy. Conferring with an attorney about managing debts can help protect assets.
Individual debtors can choose between two types of bankruptcy petitions: Chapter 7 and Chapter 13. Chapter 7 is a liquidation of non-exempt assets that wipes out pre-petition debts and typically takes three to four months. Chapter 13 is a restructuring of debts that allows the debtor to keep assets but requires a plan that can take three to five years to achieve the resolution of pre-petition debts. Not only are there specific rules about which Chapter is available to a debtor, there are important distinctions between the two that bear careful consideration before filing. In evaluating the assets and debts, there are issues of asset exemptions, unavoidable debts, timing, income, and other complexities that make it confusing to determine which way to go. Before proceeding with a bankruptcy, a meeting with an attorney can help sort out which Chapter is appropriate.
The goal of bankruptcy is to wipe the debtor’s slate clean of certain debts. But to do this, all of a debtor’s assets are scrutinized to determine whether they have to be liquidated to pay something to creditors. Even in a Chapter 13, this presents a potential loss of something of value to the debtor. There are specific exemptions, strategic approaches, and acceptable plans that a bankruptcy attorney can help the petitioner identify and use to protect assets. For example, an attorney can help a debtor find alternatives to borrowing from a retirement account to pay debts when these accounts would be exempt in bankruptcy.
The administration of a bankruptcy case seems relatively straightforward. A petitioner has to submit specific information, meet certain deadlines, and, depending on the Chapter, proceed with required meetings and hearings. Negotiating these aspects can be done on one’s own, but having counsel can smooth the way. In particular, an experienced bankruptcy attorney will have established working relationships with the United States Trustee assigned to the bankruptcy case and help avoid conflicts on this basis. Also, even though creditors are required to cease all collection efforts once a debtor has filed a petition for bankruptcy, this does not prevent them from objecting to the debtor’s plan, even going so far as to institute an adversary proceeding to interrupt the process. Having an advocate who understands bankruptcy laws and regulations can shield a debtor from these unexpected events.
Bankruptcy exists to help debtors get a clean start. To be its most effective, the process requires careful thought and planning. Working with an experienced attorney is an excellent investment in managing these difficult circumstances. To learn more, contact Barkley & Kennedy for a consultation today.
DISCLAIMER. The material contained on this Website is not offered, nor should it be construed, as legal advice. The material on our Website has been prepared and published for informational purposes only. You should not act or rely upon information contained in these materials without specifically seeking professional legal advice.
Potential Pitfalls in Mutual Consent Divorce
/in Divorce, Family Law/by Brian BarkleySince 2015, Maryland has had a “no fault” divorce law called mutual consent divorce. The process is simpler and streamlined. It removes many of the complexities and costs of a contested divorce, and it doesn’t require the married couple to live apart for a year or meet other challenging standards for granting a divorce in Maryland. However, like any other legal proceeding, there are potential complications and risks associated with mutual consent divorce. In addition to consulting with an attorney, here are some specific items to consider.
1. A Mutual Consent Divorce Has to be “Mutual”
While the streamlined process of a mutual consent divorce may seem preferable, if one of the spouses does not want to cooperate, they can prevent it from happening. Under the law, the initial filing must specify the grounds for divorce, so if one spouse files on a basis other than mutual consent, then that party has to agree to amend the papers to be able to proceed as a mutual consent divorce. Furthermore, a mutual consent divorce requires a settlement agreement signed by both parties. Finally, mutual consent requires that neither party object to the agreement prior to the final hearing.
2. The Mutual Consent Settlement Agreement Has to Meet Certain Standards
In order to be accepted by the court, a mutual consent divorce settlement agreement has to resolve all issues relating to:
The settlement agreement submitted to the court can resolve alimony however the parties wish, but both questions of property and children are subject to standards set by Maryland law. In particular, the parties are required to complete a detailed financial worksheet to comply with Maryland child support guidelines and attach that worksheet to the settlement agreement filed with the court. The Family Court judge will review the settlement agreement and make an independent determination that it meets the best interests of any minor or dependent children.
In addition to the legal standards, there are specific rules regarding the form of the divorce documents filed with the court, the timing of certain notice periods, and the requirements to be met before the court will set a final hearing. Failure to follow these rules can slow down or prevent the divorce from happening.
3. A Settlement Agreement May Not be Enough
A mutual consent divorce settlement agreement will be accepted by the court if it meets the criteria discussed above. However, these terms may leave many issues unresolved. Questions about business ownership, taxes, insurance, and complicated questions about child support like special needs and higher education are not required to be addressed, but they can be a source of major conflict if they are not resolved in the settlement agreement. It is worth consulting with an experienced family law attorney to work through your particular facts and circumstances to make sure that critical matters are resolved at the time of the divorce.
The mutual consent divorce law significantly eases the divorce process for married couples in Maryland. However, it still isn’t “easy”. Cooperation, compliance with the law, and tackling all the issues between a couple are each necessary. If you are considering a divorce in Maryland, and you want to know more about mutual consent and other options, contact Barkley & Kennedy for a no-charge 30-minute consultation.
DISCLAIMER. The material contained on this Website is not offered, nor should it be construed, as legal advice. The material on our Website has been prepared and published for informational purposes only. You should not act or rely upon information contained in these materials without specifically seeking professional legal advice.
What are some of the Benefits of pursuing Mediation during a Divorce?
/in Uncategorized/by Brian BarkleyIf you and your spouse are going through a divorce in Maryland but are unable to resolve certain issues such as how your assets are going to be divided or custody or visitation with your children, your divorce will be classified as a contested one. When a couples’ divorce is contested, it can make the process more difficult and delay finalizing the divorce. If the parties have initiated the divorce process through the court system, nearly all contested cases get referred to court ordered mediation while the case proceeds on a trial schedule. Hence, you should inquire about the mediation process once you anticipate your marriage is coming to an end. Read more