Where there is a divorce, there is often financial duress. And the reality of the matter is that even though two people may very well be in a great hurry to get away from one another by ending their marriage, the prudent move before filing a divorce complaint and retaining separate attorneys will almost always be making one last trip together to speak to a single attorney about clearing up all marital debts through a properly filed bankruptcy prior to divorcing.

When we are talking about divorce with our Clients, quite frequently a discussion of bankruptcy will also ensue. This is because, unfortunately, the creation of an additional household makes it difficult if not impossible for many separating spouses to maintain and pay their current debts, let alone the new demands of a new home as well. The truth of the matter is actually that, in many cases, a bankruptcy can help out both spouses if they file jointly prior to filing a complaint for divorce. Common bankruptcy questions we are asked frequently fall into four categories; 1) The payment of child support and alimony after a bankruptcy has been filed; 2) The enforceability of a property settlement agreement after a bankruptcy has been filed; 3) What happens to a joint credit card debt if only one spouse files for bankruptcy?; and 4) What happens if one spouse files for bankruptcy during a divorce proceeding but the other does not?

In most cases, once a debtor files for bankruptcy, all creditors must stop all actions to collect their debts. This is called the “automatic stay.” The automatic stay stops all foreclosures, garnishments, bank levies, and creditors. However, the automatic stay does not apply to the enforcement of the collection of child support or alimony. These types of obligations have a super priority under the Bankruptcy Code. Any child support or alimony garnishment order(s) that deduct current support from a severed spouse’s wages are generally unaffected by the bankruptcy filing. However, in many cases unscrupulous ex-spouses will rack up thousands of dollars in child support arrears, and the collection of child support arrears will, unfortunately, be stayed in a bankruptcy filing. Most importantly, however, the Bankruptcy Court has declared obligations to pay spousal support and attorney fees as non-dischargeable pursuant to 11 U.S.C. 523 (a)(5) of the federal Bankruptcy Act. Additionally, those debts which have been apportioned in a Property Settlement Agreement may very well also be held as non-dischargeable as well.

If only one spouse files for bankruptcy once a divorce complaint has been filed, then the family court can still continue to hear and decide issues relating to establishing support, be it child or spousal. However, with regard to issues of equitable distribution, the family court will require stay relief, a Bankruptcy Court order that permits the divorce case to continue. Basically, the family court will not split up the family home, divide pensions, or apportion any stocks or mutual funds until the Bankruptcy Court gives it permission to do so, because the marital estate, once a bankruptcy petition has been filed, is now the bankruptcy estate and is under the authority of the Trustee once the bankruptcy petition has been filed.

The distribution of credit card debts is a primary issue that arises in the majority of divorce cases. We generally suggest that all credit card debts be paid off from the marital assets before any monies are distributed if it is at all possible, when the issue of a post-divorce bankruptcy filing rears its head. It is generally always advisable to pay off all of the marital debt before the divorce is put through before the court if it can be done. It is always important to emphasize that post-judgment issues arise in virtually every divorce, especially with regard to debt and especially with regard to credit card debt. It is extremely important for a divorcing couple to tie up as many loose ends as possible. This is because if one spouse files for bankruptcy to discharge a credit card debt and the other spouse does not file, then the credit card company will “go after” the spouse who did not file. When you sign up for a credit card, the contract into which you have entered will almost always automatically place one’s spouse in liability country with regard to that card’s debt should you default. The contract requires both parties to be jointly and severally liable. Basically, this means that if one spouse should die or files for bankruptcy, then the other spouse is liable for the entire credit card debt. Credit card companies do not care whether it is fair to collect the credit card debt from you or from your ex-spouse, even though the charges were racked up by your ex-spouse. The credit card company cares about collecting money and nothing else. They will destroy your credit, establish liens against your home, and garnish your wages for years to come to get their money.

Call Jeff for a free consultation to see what you should do!

Are you ready for divorce?

Before you decide, have you considered the following:

- Have we tried everything to salvage this relationship? (Counseling, seeing someone at your church or synagogue, talking to family, talking it out?)
- Can you live with the consequences of starting the process of divorce? Are you financially able to survive the transition? Have you prepared yourself emotionally for the challenges you will face? Do you have a plan for where you will live and how you will get by? Have you spoken to an attorney about your legal options?
- Have you prepared your family and friends for the change ahead?
- Are you sure that this is a decision you are making for you, not based on what other people think you should want?

If your spouse has been abusive, you need to be particularly careful to prepare for the separation ahead by making a safety plan to protect you and your children. The most dangerous time in the cycle of abuse is when the abused partner attempts to leave. This does not mean you should not do it, just that you need to keep your safety at the top of your priority list and make a plan for an exit that includes professional help and safe places to go.

If your spouse is not abusive, but has a tendency to be dishonest or you fear they may be, it would be a good idea to gather up as much information about your shared finances as possible prior to letting them know that you are filing for divorce.

You also should see a lawyer privately BEFORE having “that conversation” so that you know what your options are and how to proceed. Even if you think you can work it out between you, a well written separation agreement is vital to protecting your interests in the long run. Many of our clients became our clients because they tried to download a separation agreement off the internet to save money and are now spending thousands to repair the damage of what they lost by not seeking appropriate legal counsel from the beginning. Negotiation and writing of a separation agreement can cost between $500-1000. Filing motions to fix what you messed up later (if it can even be done) will cost a lot more.

If you aren’t sure if you are ready, The Law Offices of Lynda Hinkle does offer free consultations in which there will be NO pressure to make the decision immediately. We can walk you through what your rights are and how to prepare, as well as how much money you are likely to need to save up to proceed. We encourage you to work it out if there is still love there….

But if you ARE ready, we’re ready to protect you.

Never put yourself at fault for the actions of another. Blaming yourself will only open the door for more of the same abuse and make the offender feel justified in hurting you. In fact, that is the most common excuse of defense an abuser will use to manipulate your feelings and alleviate their own guilty conscience. Understand that they are likely to know you well enough to know exactly how to make you feel as though you deserve their harmful treatment.

Just as the abuser must be held accountable for their irresponsible and violent behavior you must accept liability of becoming your own savior, for you are the only one who can rescue you from the dangerous situation of being in a destructive relationship. To help you overcome fears and maintain the bravery needed to stay focused on protecting yourself, family, and assets, keep supportive family, friends, and professionals close by.

Taking action now to escape from further precarious circumstances may feel overwhelming, but it enables you to have a safe and happy future for you and your family in the long run. Things to discuss with your attorney include how to file a restraining order, what to do if your abuser violates the restraining order, getting the financial and emotional support you need for your and your children, division of property, child custody and visitation, and creating a plan for your physical safety and that of any children and family.

When what once may have been a healthy relationship becomes violent, you begin living life in fear of the very person you used to rely on for strength and safety. Depend on the Law Offices of Lynda Hinkle to provide you with the legal support you need. We understand what domestic violence is all about, and we will not downplay what you have been through, blame you for it, or disbelieve you if you can’t show physical bruises or if at some point a police officer or other authority didn’t believe it.

Acquiring professional legal help by calling for a free consultation at 856-983-0406 empowers you in planning for your protection. If you are in immediate physical danger always call the police first.

Parents have rights over their children, and in a difficult custody battle it is important to keep in mind the best interests of the child. It is often the most difficult thing for parents to do in setting aside their own personal interests. Another important point to note in a child custody dispute is not to let the children suffer from the problems that exist between parents anymore than they already are with the pain that accompanies a divorce or separation. Pitting children against one parent or the other will not settle any dispute, but only create more.

Let a law firm, such as the Law Offices of Lynda Hinkle, fight the battles between you and your former partner in a civil manner. Maintaining the high road does not mean letting the other side walk all over you, it means putting the interests of your children first but fighting for your relationship with them in court, away from their eyes. Knowing you have professionals working on your side leaves the time spent with your children free from any discussion and anxiety dealing with the dispute. This will demonstrate that you are putting their interests and feelings first.

Also, be prepared to negotiate and compromise with the other side in a custody dispute since it is unlikely that one side will walk away with all demands granted in family court, except in some cases where there is violence, addiction or other threats to the childrne’s best interests. In settlement negotiations it is important to weigh out what is more important and less important to you, because being flexible may help you attain your higher priorities and reduce legal costs while maintaining control in the outcome of your case.

A free 30-minute consultation at the Law Offices of Lynda Hinkle would provide insightful legal advice for your own personal circumstance, and could make all the difference in gaining more time for the most important life long relationship you’ve committed to being in: with your children.

” Having an Attorney for Domestic Violence Case: Yes or No?

“There are no winners in family court.”

I do not mean to suggest that you will walk out of the courtroom with nothing that you hoped for. You will likely get some of your requests granted — but so will the other side. Unlike criminal court or a civil judgement, there is no declared winner who takes all in family court — particularly in actions involving your children. Judges must take into consideration not only what is just and fair for you, but also for the other side and what is in the best interests of any involved children. As a result of needing to balance these often very different interests, judges in family court rarely find all for one side or another (there are exceptions, like for example in an action for protection against domestic violence, or a final restraining order hearing, the judge will find that either the order is granted or denied in full, but may make dispositional decisions after that which favor either side). Instead, judges try to work out an arrangement that meets the court’s goals — fairness, justice, best interest of the children involved. You may not agree with all of the rulings that the judge makes, and you can fight some of them through appeals or certain kinds of motions.

However, when possible, one of the best ways of controlling the outcome of a legal action is negotiating a settlement agreement in advance. If both sides are willing to be flexible on some of what they want in order to go after their most important goals, this can be a great opportunity to reduce legal costs and take the control back out of the court’s hands and into your own.

If settlement negotiations fail or are impossible (don’t negotiate if the other person is threatening or there is such an imbalance of power that a fair agreement is impossible), then prepare a list of the MOST important two or three things that you want out of the litigation. Then write a list of two or three other VERY important things you want. Put all the other issues into a list of LESS important things that you want. Fight hard, or ask your attorney to fight hard, for the things in the VERY important category, but be willing to let go of some of the lesser issues. If you fight with equal vigor for even the smallest points, it may hurt your credibility before the court and the judge may take your wishes less seriously. That is important because although there are legal rules and case and statutory law that a judge must follow in making a ruling, his or her perception of the credibility, flexibility and character of the parties does factor in, especially when making a determination of what is in the best interests of the child.

Finally, prepare yourself for the possibility that the law is not on your side. If you have an attorney, they can advise you as to the likelihood that a judge will rule in your favor based on case and statutory law in your jurisdiction. If you do not have an attorney, you can research these issues at a local law library. If your issue is a complex one, you might want to consider hiring an attorney to help you.

Manage your expectations, determine your priorities, and know your law — there are no winners in family court, but there are usually no outright losers either.

Before you get married or agree to live with someone, get something in writing about what happens if this love you feel doesn’t last. Cohabitation agreements outline what belongs to whom, how things will be paid while you live together, and how things are divided if you split up. Prenuptial agreements do the same things but address broader issues of marriage. Prenuptial agreements cannot legally prescribe or eliminate child support: that right lies with your child, and neither parent is immune, depending on the circumstances, to having to support any children that come out of the relationship. However, prenuptial agreements allow you to spell out under what circumstances “mine” and “yours” becomes “ours” and has to be split if the marriage falls apart. Don’t suggest a prenup a week before the wedding, and don’t sign one if that’s your partner’s idea. You need to time to get an attorney to look it over, on both sides. Start this talk months before the wedding. While you are at it, get your attorney to look over or create your estate plan covering one another as spouses.

DURING MARRIAGE/COHABITATION
Well, you moved in/got married. Everything seems to be going well. Okay, he sometimes leaves his socks on the floor. She sometimes doesn’t put away her toothbrush. But overall, it’s going fine.

But don’t….

Know Everything, Keep Everything: This sentence should begin your fiscal relationship with your loved one, “I love you, and I am happy we are together. But I need you to know that I take this partnership seriously, and I want to know everything that goes on financially within it.” Know what your partner makes. Know what the bank account numbers are. Know what the bills are. Pull out credit reports and compare and talk about solving any problems you see on either side.

Keep Notes of Significant Events: Something isn’t adding up? Keep notes of anything that seems suspicious, or of any dates of anything significant that happens in the relationship in case you need to refer to it later.

Domestic Violence: If there is abuse going on, develop a safety plan. Even if you are not ready to leave, make sure you have squirreled away your important papers, and have some basic essentials in a bag at a friend’s house or somewhere else in case you need to leave in a hurry. Find out what the laws in your state are regarding domestic violence. Know where you can go, and who you can go to if you have to leave in a hurry.

Assess with Objectivity: Whether it is a serious problem like domestic violence, or simply that you can’t stand the way the fork scrapes across his teeth when he eats, if you are having problems in the relationship, think seriously about how to assess the problems in the relationship and the problems you may have leaving. Talk to an attorney, a financial planner, an accountant, a counselor, a friend…whoever is talented in ways you are not…to help you come up with a plan to get out. If it turns out you don’t need it because you can make it work, at least you are armed with information.

AFTER THE BREAKUP

Well, it didn’t work out. Okay. It happens. Now what?

GO! See an Attorney as Soon as Possible: Don’t wait until after you’ve packed his bags and sent him on his way. The moment that idea flashes into your head, get to an attorney and find out what your rights are, what information you need and how to do this so as to best protect your legal rights.

Plan as though You Will Get Nothing: You May Not. You might walk out the door with nothing but a suitcase filled with blue jeans and tshirts. It’s possible you can get temporary or long term support from your former partner through equitable distribution, alimony, child support or temporary spousal support. However, sometimes it takes quite awhile to get these things. Additionally, he may try many tactics to hide his assets, or he may simply have a lot less than you knew about. So if you have the time to plan, plan as though you won’t get anything out of him. Work, get the support of family, put some money aside….whatever you need to do to ensure that when you leave, you can take care of yourself.

Prepare Your Children: Although some separations/divorces are gentle and even loving, many are vicious. Perhaps there will be a boyfriend or girlfriend of your former partner’s that may become involved in your children’s life. Perhaps there will be slurs made against you in their presence. Perhaps YOU will slip and make slurs about your children’s other parent in front of them. Prepare them as best you can to know that this is not their fault, that they are still very loved, and that things will get better. If you have access to mental health services, it never hurts to get your children in to talk to a therapist if they are old enough, so they can work through their pain about the situation without feeling they have to lean on Mom or Dad, both of whom they will perceive as hurting (they are smarter than you think).

Self-Care: Throughout this time of trauma, remember to take care of yourself. You are someone special. You deserve love and happiness. This, too, shall pass.

The parental alienation syndrome (PAS) is a disorder that arises primarily in the context of child-custody disputes. Its primary manifestation is the child’s campaign of denigration against a parent, a campaign that has no justification. It results from the combination of a programming (brainwashing) parent’s indoctrinations and the child’s own contributions to the vilification of the target parent.

(Excerpted from: Gardner, R.A. (1998). The Parental Alienation Syndrome, Second Edition, Cresskill, NJ: Creative Therapeutics, Inc.)

Courts, the psychiatric community and lawyers have argued incessantly about whether its a “real” disorder and what its impact is on children and on litigation related to them.

In a recent case in New York, a woman was given jail time for repeatedly interfering with the relationship of her children and their father. In many courts, sanctions can be applied for interference with custody orders.

For both parties in divorce or custody battles, it is often difficult to separate what is best for the children from what is best for them individually because of the intense emotions that arise during these sorts of cases. It is easy to see how the legitimization of parental alienation syndrome could lead to an influx of accusations and the use of the syndrome as another litigation tool. However, it is important to note, from a common sense perspective, that children who are caught in the middle of two angry parents will feel conflicted, will feel pain. Courts can and should do more to mitigate this damage through the use of mandatory counseling and parental training on the impact of these behaviors on their children when such things arise.

For women, part of legal health is protecting yourself against not only falling into the trap of parental alienation, but also against accusation. Some steps you can take:

1. Although you should certainly advocate for your rights, be reasonable about parenting time issues when it is in the best interest of your child.

2. Avoid having arguments or even heated discussions about the child where the child is able to hear.

3. Do not share with your children the details of the litigation or your feelings about it. Do not allow other people in your life (grandparents, friends, etc.) to talk about the litigation or their feelings about it to your child.

4. If you feel that you are the one being alienated, keep careful logs of all behaviors and activities that the father of your children is doing that leads you to that belief. If you have an attorney, bring the issue up to them. If you are appearing before a judge, let the court know what is happening.

5. If you feel that your children are suffering from being in the middle, consider getting them into some counseling or play therapy if they are young. Not only is this good for them, but it also helps to demonstrate that you are putting their interests first.

6. Consider counseling also for yourself. You may not know how to direct your anger, and a good counselor can help make sure you aren’t even accidentally allowing your children to carry it.

Above all, remember that part of your legal health is seeing the big picture, not just the pain of the present. Keeping you and your child emotionally healthy is an important part of protecting your legal health as well.

- Reprinted from Legal Health for Her

Get legal help. You don’t have to go through this alone. Call our office for a free consultation at 856-983-0406.

Don’t blame yourself. If you have been a victim of domestic violence, it is not your fault. Your abuser may try to make you feel as though it is, and chances are he or she knows you well enough to know how to make you feel that way. Don’t allow it.

Become your own hero. Although it is tempting to look for someone to save you in this terrible time of turmoil in your life, you are the hero you are looking for. Surround yourself with the support you need: a good attorney, friends and family who are supportive, a counselor or therapist, and any other professionals you may need. Don’t be afraid to lean on this support, and don’t be afraid to ask questions. But ultimately it is YOU who will get you out of this, and YOU who will look back on this time and know what an amazing, strong person you are for having done it.

Instead, focus on protecting yourself, your family, and your assets — both in the short term and in the long term. Right now your life feels chaotic; but think of how you will feel a year from now. Try to imagine how you want your life to be then. The things you do now will create that future for you and your family.

What to discuss with your attorney: creating a safety plan for your physical safety and that of your children, how to file a temporary restraining order, what a final restraining order is and how to get one, asking for the financial support you need, dividing property, your children and their support, child custody and visitation, what to do if your abuser violates the restraining order, finding resources for your emotional support, questions you have about the legal process.

When to call your attorney: whenever you have a question, concern or you need help finding a resource. However, if you are in physical danger call the police first, and then your attorney.