Gift or Loan Prior to Bankruptcy

When you’re struggling with debt, it’s natural to turn to friends and family for help. They know you and they trust you, making it simpler and easier to seek financial aid from them than from a bank. If your financial difficulties continue and you decide to file for bankruptcy protection, what happens to the friends and family members from whom you borrowed?

Gift or Loan Prior to Bankruptcy

Did you sign a promissory note?

The first question when considering money borrowed from family members is whether or not the debtor signed a promissory note. If you signed a promissory note, the money you received will be formally treated as a loan. A promissory note must include information identifying the borrower and the lender. It should specify the amount, the repayment terms, and what will happen if you don’t pay.

If there’s no note, that money may be treated as a gift. While you may feel bound to honor your word to Mom and Dad, the court wants a legal promissory note to mark a loan. Without the formal paperwork, it’s just a gift.

Loans in Bankruptcy: How They Work

If you have signed a promissory note, you’ll need to list the lender as a creditor on your bankruptcy schedules. They’re legally entitled to repayment the same way every other creditor is. They’ll also be treated just like any other creditor.

Most consumers file bankruptcy under either Chapter 7 or Chapter 13. Chapter 7 bankruptcy is a liquidation of your debts. You’ll use state and federal exemptions to protect most, if not all, of your property and the remainder will be sold to pay creditors. All creditors get a proportionate payment, so if Mom and Dad represent 5% of your debts, they’ll get 5% of the proceeds.

Under Chapter 13, the court will take your disposable income for payment of creditors for 3 to 5 years. Your disposable income is determined by taking your actual income and subtracting state and national standards for living expenses. You’ll pay your disposable income to the court and they’ll distribute it proportionally among your creditors.

At the end of both Chapter 7 and Chapter 13, the remainder of your unsecured debts will be discharged, or legally forgiven. You’ll no longer officially owe anything. You may, of course, choose to repay your friends and family on your own after the bankruptcy process.

Gifts in Bankruptcy: How They Work

If there’s no promissory note to mark your loan from friends or family, that money is considered a gift. You’ll have to disclose the gift on your bankruptcy schedules. If you’re the one who gave the gift, you’ll also have to disclose that on your bankruptcy schedules if it’s over a certain dollar amount, depending on the state in which you file.

Cash Gift in Chapter 7

What happens to a gift in bankruptcy depends on the timing. If you received the gift before you filed, the court will take it into account when determining what you can pay. If you received the gift after you filed for Chapter 7, the gift won’t be included in your bankruptcy proceeding.

Cash Gift in Chapter 13

If you received the gift during the Chapter 13 process, the answer is uncertain. If the gift happens before you file, you may be expected to pay more to your creditors. If you receive the gift between the date that you filed your case and the date that your repayment plan is confirmed by the court (that can take several months), the trustee in charge of your case may argue that you now have more disposable income and can pay more. If you receive the gift after confirmation of your payment plan, you’re more likely to be able to keep the gift without increasing your payments.

Note that if you’ve given any significant gifts before filing for bankruptcy, the trustee may be able to claw that money back. The court wants to avoid fraudulent transfers — ways of getting money out of the bankruptcy estate in order to keep it safe from creditors. That doesn’t have to be your intention in giving the gift; just giving cash to someone for a holiday or special occasion is enough to trigger a clawback. You may also trigger a clawback if you repay a loan from a friend or family member (with or without a promissory note) before you file for bankruptcy. That’s called a “preferential payment,” meaning that you chose to repay one creditor over another.

The court wants to ensure that all creditors are treated equally in the bankruptcy process, so that payment to Mom and Dad is going to get pulled.

Legal Documentation is Best Practice

Your family and friends are there to help you in times of need and you’re there to help them. Unfortunately, the legal system doesn’t care about familial or friendship bonds. The bankruptcy courts want to see formal legal documentation of your financial situation. So, whether you’re borrowing from or lending to someone close to you, consider creating a proper promissory note.

You can download templates online for free and it can save you a lot of trouble in the bankruptcy court. It’s also a good idea to have a formal note for the sake of your relationship with the other party. You can discuss the terms in advance and have a real plan in place for repayment. You won’t be left wondering if Cousin Eddie ever really meant to pay you back that $1,000 or if he’s just taking advantage of you.

If you’re struggling with debt and considering bankruptcy, speak to a local bankruptcy attorney. Bring all your financial documents and be sure to discuss any financial arrangements with friends or family members, whether or not they’re formally recorded in a promissory note. Your attorney can help you determine what will happen to those financial arrangements in the bankruptcy process and can work with you to decide on the best way to deal with your debts.

Free Consultation with a Utah Bankruptcy Lawyer

If you have a bankruptcy question, or need to file a bankruptcy case, call Ascent Law now at (801) 676-5506. Attorneys in our office have filed over a thousand cases. Come in or call in for your free initial consultation. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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from Michael Anderson http://www.ascentlawfirm.com/gift-or-loan-prior-to-bankruptcy/

from Top Rated Utah Lawyer https://topratedutahlawyer.wordpress.com/2018/05/24/gift-or-loan-prior-to-bankruptcy/

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Utah Divorce Basics

Utah Divorce Basics

Utah allows for no-fault divorce, requiring only that the filing spouse allege irreconcilable differences between the parties. A spouse filing for divorce in Utah may also file for a fault divorce, citing any of the following grounds: bigamy, willful absence of the other party for more than one year, adultery, extreme cruelty, fraudulent contract, living separate and apart for more than one year, or incompatibility, among others.

The court may order, either on its own or at the request of one of the spouses, that the parties participate in reconciliation counseling for a period of up to three months or family counseling, if children are involved, for the entire divorce proceeding. If the court orders counseling, it will not finalize the divorce, annulment, or legal separation until the results have been reported to the court.

Residency Requirement for Divorce

The spouse filing for divorce (otherwise known as the plaintiff) must be a resident of Utah for at least six months before the filing.

Divorce Property Division 

Utah is an equitable distribution state, so the court will divide marital property equitably between the two spouses. Separate property is not subject to division–this includes property that each spouse had before the marriage, inheritances or gifts given only to one spouse, and separate property as agreed to in a prenuptial agreement.

Alimony

The court may grant either spouse an award of alimony, also called spousal support, based on factors that include the parties’ respective incomes and earning abilities, the duration of the marriage, and the standard of living established during the marriage. The court may also determine that one spouse’s earning capacity has been diminished or lost because of marital responsibilities, and award alimony accordingly. Support may be awarded in lump sum or as monthly payments.

Child Support

All parents are required to support their children regardless of the status of the marital relationship. The parents will also be required to provide healthcare for the child. Child support in Utah is calculated based on the gross income of the parents and the number of children that the parents support. A judge might make adjustments to the income considered if the parent is responsible for union dues, support for other children, or spousal support obligations. If the parents’ total annual income is less than $6,600 or more than $150,000, it is outside of the guidelines and the court must determine a support amount on its own. The court would use the child support schedule as a guideline and will always take into consideration the best interests of the child when making an order for support.

All child support payments are paid to the Department of Job and Family Services, which facilitates payments to the other parent. Child support payment information can be found at the website for Utah’s Department of Job and Family Services.

Child Custody

A judge looks at numerous factors when making child custody orders, including the child’s wishes, the parents’ wishes, the child’s relationship with both of the parents and the family members of each parent, and whether either of the parents have been convicted of a crime involving child abuse or neglect. The court may order that the child spend equal time with each parent, or establish one parent as the primary residential parent while granting the other parent visitation rights.

A residential parent who wishes to relocate with the child must notify the court in writing; the court will then notify the other non-residential parent of the intent to relocate. If the non-residential parent does not agree to the move or if the judge feels that the move would not be in the best interest of the child, there may be a hearing to determine whether the custody arrangement should be modified.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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from Michael Anderson http://www.ascentlawfirm.com/utah-divorce-basics/

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How Bad is Bankruptcy For Your Credit?

What stops people from filing for bankruptcy? Ask a bankruptcy lawyer and you’ll get different answers. Is it fear, pride or a belief that declaring bankruptcy is in some way unethical? If you stopped and asked 10 people on the street for the number one reason not to file bankruptcy, most would mention damage to their credit.

How Bad is Bankruptcy For Your Credit

Bankruptcy in Utah

There is a common public perception that playing the “bankruptcy card” creates a ripple effect that reaches every aspect of your life in a negative way. After all, bankruptcy does show up on your credit report for 10 years and no one wants to start a job interview by discussing a past chapter 7 case. Filing for bankruptcy certainly won’t make it easier to rent an apartment or lock in a good rate on a mortgage. However, it won’t disqualify you from future credit either.

The Toothpaste is Already Out of the Tube

To be sure, filing bankruptcy is not something that is to be entered into lightly, however, there is more than a hint of irony in the reasons people commonly give for not filing bankruptcy. Perhaps the most commonly cited: that bankruptcy will ruin your credit (and by extension your life). Unfortunately, bad credit is a scenario that has already unfolded for a good number of people who find themselves in financial distress. For many people, the biggest reason not to file bankruptcy (damage to credit) has already happened by the time the thought of bankruptcy pops in their head. Maybe a series of financial missteps or the loss of a job have caused charge-offs, liens, foreclosures, missed payments and a whole host of other negative credit events to appear on your credit score, is a bankruptcy really going to make much of a difference?  Sure, bankruptcy will add another negative mark on your credit report, and you’d like to avoid it if possible, but in the long run it may actually give you greater access to credit. Taking your unsecured debts to zero and using the momentum to start over will help you build a stronger credit score. Waiting around with the phone off the hook won’t.

Bankruptcy vs. Other Negative Credit Events

Chapter 7 bankruptcy stays on your credit report for 10 years, whereas a foreclosure will usually stay on your credit report for 7 years. However, don’t assume that foreclosure is preferable to bankruptcy simply because it stays on your credit for a shorter period of time. Many credit counselors report foreclosure as having twice the negative impact on your credit score as a bankruptcy. According to Ray Hooper, Education and Housing Director for the Consumer Credit Counseling Service of Greater Dallas:

“A foreclosure is very serious to mortgage lenders. They’re going look at a foreclosure more seriously than they will a bankruptcy that doesn’t include the house.”

According to FICO estimates, bankruptcy will cause a reduction in the filer’s FICO score of between 130-240 points, whereas a foreclosure, deed in lieu or short sale will cause a reduction in the 85-160 range.

Public Records and Bankruptcy

Tax liens, judgments and bankruptcies are all listed under the “Public Records” section of your credit report. Any reported Public Record will damage you credit, however it’s important to understand that bankruptcy filings don’t have their own section on a credit report. They are lumped in with other government initiated events. If you’ve already had a tax lien or judgment reported on your credit, the negative impact of a bankruptcy will be decreased and the benefits of filing may outweigh the additional credit damage.

Even missing payments on credit card accounts can drop a credit score by 75 points or more. The point is not to make light of the seriousness of a bankruptcy filing, but merely to point out that, viewed in light of a series of negative credit events, bankruptcy becomes more and more attractive when a consumer’s debts have spiraled out of control.

Free Consultation with Bankruptcy Lawyer

If you have a bankruptcy question, or need to file a bankruptcy case, call Ascent Law now at (801) 676-5506. Attorneys in our office have filed over a thousand cases. We can help you now. Come in or call in for your free initial consultation.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Utah Divorce

If you are getting divorced in Utah, make sure you have a good divorce lawyer on your side. Do you know what property you get to keep and what you have to split with your spouse? You may also have questions about who will be responsible for the marital debt.

Utah Divorce

Equitable Division of Property in Utah Divorce

Utah is an equitable distribution state, meaning that the marital property will be divided between spouses in a way that is equitable, or fair. The court decides what’s fair based on a set of factors that show what each of you contributed to the marriage and what each spouse will need to move forward after divorce. The division does not have to be equal to be considered fair.

The court will be involved in the division only if you could not work together with your spouse to resolve your property disputes. Throughout the divorce process, you will have opportunities to decide with your spouse how you want to split your property between yourselves. The court will usually accept a written separation agreement on how you want to divide your property. It is only if you cannot reach a compromise with your spouse that the court will step in and divide your property for you.

Marital Property Will be Divided

Before the court can divide your property, it needs to know which property belongs to the marriage, which belongs to each spouse separately, and how much there is of each. Generally, marital property is all property acquired or earned during the marriage, regardless of what the title says. Separate property is property you owned before marriage. It also includes some property you receive during marriage, like a gift, an inheritance, or personal injury award to you alone. If you exchange your separate property for new property during marriage, then that new property remains yours alone. There are circumstances, however, when an increase in the value of your separate property will be characterized as marital property.

For example, if you owned a vacation home before marriage that your spouse updated and remodeled during marriage, then the increase in that house’s value is marital property because it comes from your spouse’s efforts. On the other hand, if you bought an apartment in an up-and-coming neighborhood before marriage and it improves in value during the marriage simply because the rest of the homes in the area do the same, then that increase in value remains your separate property.

At divorce, the court divides only the marital property. It can’t award any property that was yours alone before or during marriage to your spouse. It can, however, consider all your financial resources – both your share of the marital property and your separate property – when deciding how much spousal maintenance (alimony) to award, if any.

Factors Considered in Dividing Marital Property

The types of property commonly divided at divorce are real property like the family home, personal property like jewelry, and intangible property like income, benefits, and debts. The court treats debts the same as any other real, personal, or intangible property. Before dividing an asset or debt, the court will have to characterize it as either marital or separate and then assign ownership or responsibility for it based on a set of factors designed to give an equitable result.

These factors include the length of the marriage; each spouse’s age, health, income, potential earnings or future financial circumstances; and property. The court also looks at how each spouse contributed to the acquisition of marital property and, for these purposes, the court treats a spouse’s efforts as a homemaker the same as monetary contributions. For the family home, if you have custody of your children, then you have a better chance of keeping that property, or at least the right to live there while you raise the children.

In addition to any other factor that might be relevant to the particular circumstances of your marriage, the court specifically considers what the spouses may have lost at divorce, such as an interest in an inheritance, pension rights, or health insurance. It also evaluates future losses the spouses face in terms of taxes.

Some assets aren’t easy to divide between two people. Something like cash, which is very liquid, can easily be split between the spouses. But an interest in a business isn’t as easy to divide. The court has the option to order a distributive award – a payment to balance out an uneven distribution of property – if it is impractical to divide a substantial asset.

Although fault in causing the marriage to fail is not part of the calculation, the court can award less of the marital property to you if you wasted marital assets. You can’t spend marital funds flying your lover to Paris, for example, without having to pay for it later. Likewise, you can’t sell, transfer, or otherwise encumber property in anticipation of your divorce. If you do, the court can penalize you for it during the division.

Spousal Maintenance Determination in Utah Divorce

Spousal maintenance is a payment from one spouse to the other to help sustain the recipient spouse after divorce. Similar to the division of property, the court’s order for spousal maintenance must be equitable. Payments can be periodic (monthly, for example) or in a lump sum, and for a set or indefinite period of time. A spouse can request temporary maintenance payments during the divorce process, the amount of which will be based on specific income guidelines.

When the court orders the divorce and the property has been divided, the court can also make a permanent maintenance award. In Utah, an award for spousal maintenance is based on many of the same factors as the division of property. Some other factors include the spouses’ level of education and earning capacity, the marital standard of living, and the needs of any children. The court also considers domestic violence during the marriage, which may have kept the battered spouse from seeking or improving employment. The court is also free to look at any factor relevant to the award of maintenance, such as a spouse’s ability to pay.

Free Consultation with a Divorce Lawyer

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Step-Parent Adoption Information

Step-Parent Adoption Information

Being a parent is a rewarding, yet difficult job. When you’re a stepparent, the job can present additional challenges as you fill an important niche in a child’s life. Sometimes stepparents chose to further expand their role by adopting their stepchildren, although there are legal hurdles that must be crossed to formalize that relationship. This article will provide answers to some of the most common questions about stepparent adoption, including:

  • The legal requirements needed to complete the process;
  • The duties and rights of the birth parents; and
  • The eligibility of same-sex couple step parents.

I want to adopt my wife’s birth children. How difficult is it to adopt stepchildren?

It is not difficult as other types of child adoption, but there are still steps that must be taken. In most other child adoptions, the court requires home visits and adoption hearings, and there is a long waiting period. Because in a stepparent adoption the parties are related, the courts may remove these requirements in order to speed up the process. The main issue that most stepparents adopting a stepchild face is obtaining consent from the other birth parent.

Do I need consent from the birth parents to adopt my stepchild?

Yes. In all stepparent adoptions, the consent of the other birth parent is required. If that other birth parent’s parental rights have been terminated due to abandonment, neglect, unfitness, or failure to pay child support, however, then that birth parent’s consent is not required.

Getting consent from the other birth parent is often difficult because, in giving consent, that birth parent is giving up all of his or her parental rights. Of course, this means that that birth parent is giving up all parental responsibilities, such as paying child support, as well, so if the birth parent does not have a relationship with the child anyway, the stepparent may have an easier time getting consent. In some cases, the other birth parent may recognize that the stepparent adoption is in the child’s best interest. In those cases, consent is not hard to obtain.

If the other birth parent does not consent, can his or her rights be terminated, anyway?

There are ways to terminate the other birth parent’s parental rights, which would eliminate the requirement of his or her consent. Parental rights can be terminated if you can prove the other parent abandoned the child, is unfit, or is not the biological father (when the other parent is male).

  • How to prove the other birth parent abandoned the child: “Abandonment” means that the parent has not communicated with the child or provided financial support for the child. In most states, if the other birth parent has continuously failed to provide child support or has abandoned the child for a length of time (one year in most states), then his or her parental rights can be terminated.
  • How to show the other birth parent is unfit: If you have cause to show that the other birth parent is unfit, most state courts will conduct a fitness hearing. At this hearing, the court will deem the other birth parent unfit if she or he is abusive, neglectful, fails to visit, has a mental disturbance, is addicted to drugs or alcohol, or is incarcerated. Usually, when only one birth parent is deemed unfit, sole custody will be awarded to the other fit parent. In this case, stepparent adoption is easier, because the consent of the unfit parent is not required.
  • How to show the presumed birth father is not really the father: Showing that the other parent is not legally the father can also terminate that father’s parental rights. Each state has family laws stipulating who the presumed father is in certain situations, so be sure to check your own state’s laws. In ALL states, when a child is born to a married couple, the husband is the presumed father. If a man marries a woman after the birth of the child and the man is named as father on the birth certificate, that man is the presumed father. If you can show that the purported other parent is not the presumed father, you do not need to show unfitness or abandonment. You only need to show that he does not meet your state’s legal definition of “presumed father”. If you can do this, the court may terminate his rights. Thus, you wouldn’t need his consent for stepparent adoption. If the other parent DOES meet one of the requirements of your state’s “presumed father” definition, then either his consent will still be required, or you will need to prove abandonment or unfitness.

My partner and I are a same-sex couple. Can I adopt his child?

The U.S. Supreme Court’s 2015 Obergfell v. Hodges ruling overturned all state bans on same-sex marriage, making marriage equality the law of the land. In most cases, same-sex partners can adopt using the stepparent adoption procedures just like opposite-sex married couples can.

Free Consultation with Adoption Lawyer in Utah

If you have a question about a stepchild adoption or if you need a lawyer in Utah, please call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Wills and Durable Power of Attorney for Health Care

Wills and Durable Power of Attorney for Health Care

Unmarried couples living together often wish to share property ownership and make crucial life decisions together. There are several methods to share property rights that are recognized by the law, including joint tenancies, cohabitation agreements or “living together” contracts, and wills. This is estate planning. If couples want their life decisions to have legal validity, particularly decisions regarding medical treatment and finances, they should create what is known as the durable power of attorney.

Wills

A will is a legal document that details what an individual would like done with his or her property and assets after death. If you have property you wish your cohabitant to receive after your death, you need to describe the property in your will and indicate your wish. Otherwise, if you don’t have a will to detail your wishes, your property will pass according to what are called intestate succession laws.

In most states, intestate succession statutes automatically distribute your property to your closest family members, i.e. your spouse, children, parents, etc. Without a will, your cohabitant won’t receive any of your estate unless he or she is successful in arguing that you had a financial or property-sharing arrangement. Such claims are often difficult to prove, particularly with the lack of any formal documents. Drafting a will is generally the best way to ensure your property is passed to whom you wish.

However, if you and your cohabitant are joint owners of the property, you may wish to consider a joint tenancy with a right of survivorship instead of a will. Joint tenancies give the cohabitants the ability to share the rights and responsibilities associated with the property during their lifetimes. Then, upon the death of one joint tenant, title to the property automatically passes to the other, without the need to go through the formal probate process a will requires. There are other benefits to a joint tenancy, such as tax savings, documentation of commitment, and the sharing of debt.

Durable Powers of Attorney

When you create a “power of attorney,” you have authorized another person to make decisions on your behalf, particularly decisions that may have a legal effect. If you want the person making decisions for you (let’s say it is your unmarried partner) to be able to do so even if you become incapacitated and unable to make decisions for yourself, then you will have to make those legal powers “durable.” If you don’t explicitly make the power of attorney durable, they will end if you become incapacitated and your unmarried partner may have to go to court to ask the judge to continue managing your affairs.

Power of Attorney for Finances

There are generally two types of durable power of attorney, but this can vary depending upon the state you reside in. The first type, called the durable financial power of attorney, applies only to financial decisions. If you grant someone the durable financial power of attorney over your affairs, he or she will be able to manage your finances when you become unable, and must always act in your best interests.

Power of Attorney for Health Care

Second, there is a durable power of attorney for health care. While state regulations vary, the durable power of attorney for health care, otherwise known as a “medical directive,” allows you to name someone to direct your medical care if you become incapacitated. When creating a medical directive, you make what is called a health care declaration, or medical directive. The health care declaration sets out how you should be cared for in an emergency or if you are incapacitated. Specifically, you can direct which treatments you want to receive and which you do not. Life-prolonging treatments like resuscitation are often addressed in a medical directive, as are directions regarding quality of life and end of life treatments.

Once you have granted a durable power of attorney for medical care, the person you nominated to make decisions on your behalf will be able to:

  • Make medical decisions on your behalf, if you have not already made specific instructions regarding that decision in your medical directive
  • Enforce your health care decisions in court, if necessary
  • Hire and fire doctors and medical workers involved in your treatment
  • Have access to your medical records
  • Have visitation rights

 

Free Consultation with a Utah Estate Lawyer

When you need help with a will, trust, or estate, call Ascent Law for your free consultation (801) 676-5506. Because I am a probate lawyer, I can help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Decided to File Bankruptcy

If you’re in the middle of a short sale or just about to do one, you probably have a lot of questions. What is the difference between a short sale and a foreclosure? And what happens if you might file bankruptcy, as well?

The benefit of continuing with a short sale after you’ve decided to file for bankruptcy will hinge on the type of bankruptcy you plan on filing.

Decided to File Bankruptcy

Short Sale and Chapter 7 Bankruptcy

If you have decided to file for Chapter 7 bankruptcy and are currently trying to sell a home via short sale, there is usually no reason to continue with the short sale. The purpose of a short sale is to relieve the borrower’s obligation to pay the difference between the sale price of the home and the mortgage amount when the property is “underwater” or worth less than what is owed.

Bankruptcy gives the borrower the option of surrendering the property back to the bank with no continuing obligation under the mortgage and no corresponding tax liability for the forgiveness of debt (usually a taxable event). In essence, surrendering a home in bankruptcy allows the borrower to simply give back the keys and walk away, leaving the purpose behind the short sale moot.

Bottom line: If you are going to file Chapter 7 bankruptcy, why deal with the stress of negotiating a short sale? However, if you still live in an area where homes are severely underwater and there is a backlog of foreclosures, it could make sense to go through with a short sale to get title out of your name. When a home is surrendered via bankruptcy, the bank still must foreclose to remove the owner’s obligation for HOA dues, etc.

Short Sale and Chapter 13 Bankruptcy

The analysis of a short sale bankruptcy is slightly different in a Chapter 13 setting. Chapter 13 bankruptcy allows the debtor to surrender a home, as well; however, any remaining deficiency judgment after foreclosure will be paid out as unsecured debt through the Chapter 13 plan.

Let us explain. Even though the property is being surrendered, the bank is still obligated to foreclose to clear title. The foreclosure process will result in a sale of the property. If the sale price is less than what is owed on the mortgage, a deficiency judgment results. Subject to state law, outside of bankruptcy, the borrower would be personally liable for the entire amount of the judgment. Generally, a Chapter 7 bankruptcy will eliminate all unsecured debt including deficiencies after a foreclosure.

By contrast, in a Chapter 13 bankruptcy, the deficiency between the foreclosure sale price and mortgage amount will be paid out as unsecured debt, at far less than 100%. Because the debtor will still be responsible to pay some of his or her unsecured debt through the plan, a short sale that slashes this debt before bankruptcy remains beneficial. Therefore, if a borrower can negotiate a short sale prior to filing for Chapter 13 bankruptcy, she will reduce her plan payment by reducing her unsecured debt.

Bottom line on Chapter 13 and short sales: Completing a short sale before this chapter of bankruptcy has the potential to lower your plan payments.

Before You File Bankruptcy Talk to a Bankruptcy Lawyer

It is always wise to consult with an experienced bankruptcy lawyer if you have questions, whether they be related to a short sale or foreclosure as it concerns your bankruptcy petition. Filing for bankruptcy can be complex, so you’ll want the assistance of a qualified attorney to guide you through the legal process and ensure you fill out all the paperwork correctly and disclose all your assets.

Free Consultation with a Bankruptcy Lawyer

If you have a bankruptcy question, or need to file a bankruptcy case, call Ascent Law now at (801) 676-5506. Attorneys in our office have filed over a thousand cases. We can help you. Come in or call in for your free initial consultation.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Child Support by Agreement

Child Support by Agreement

Payment of child support can come about in one of three main ways:

  • Agreed upon in informal negotiations between the parents (usually with attorneys)
  • Resolved through use of out-of-court alternative dispute resolution (ADR) proceedings
  • Decided when a child support order is entered by a court.

The following overview focuses on resolution of child support payment through use of the first two methods mentioned above: agreement between the parents through informal settlement negotiation and use of ADR processes such as mediation and collaborative family law. Note: Even if your child support situation is resolved outside of court, in most states you will need court approval of your agreement to ensure that it complies with the Utah State guidelines on child support. You should call us to discuss this to make sure your child support agreement is enforceable in court.

Child Support through Informal Negotiations

If parents are willing to work together informally to resolve all issues related to child support (including payment amount, frequency of payments, and duration) they can negotiate an agreement with or without the assistance of attorneys. In some cases, the parties in a child support dispute may prefer to have their positions negotiated by an attorney, or the parties may negotiate themselves, and can consult their attorneys prior to finalizing any agreement. The specific settlement negotiation process will vary in most cases, but the ideal end result of successful settlement talks in a child support case is a written agreement. This written agreement may be referred to as a “settlement agreement,” and in some child support cases (such as those that are part of a divorce) the agreement on child support may be a part of a larger “divorce agreement” or “dissolution agreement.” (more on finalizing this agreement below.)

Alternative Dispute Resolution (ADR) and Child Support

For parents who need to resolve a child support matter, another option is alternative dispute resolution (ADR) — including processes such as mediation and collaborative law. ADR may prove to be a beneficial tool in resolving child support issues, depending on factors such as the degree to which the parents are in dispute on key issues related to child support and their willingness to work together to resolve those issues.

Child Support in Mediation

ADR processes tend to be less adversarial and more casual than the traditional court setting, and may facilitate early settlement.

With mediation and collaborative family law, parents in a child support dispute (along with their attorneys) have an opportunity to play an active role in resolving key decisions related to child support, instead of having a third party (judge or jury) make those decisions. Rarely used in family law cases, arbitration is a more structured ADR option, in which a neutral third-party makes decisions after hearing each side’s evidence and arguments. The arbitrator’s decision in a child support is not necessarily final, and the parties may still be able to resolve key issues before a court at a later date.

Finalizing the Child Support Agreement

Whether the parties resolve a child support dispute out-of-court through informal negotiation or ADR, the ideal result is a written document which finalizes what was agreed upon. This agreement is usually shown to a judge for final approval, to ensure that what the parents have agreed to also complies with state guidelines on child support. An informal court hearing may follow, during which the judge will ask some basic factual questions to make sure that each party understands the terms of the agreement.

As long as the judge is satisfied that the child support agreement was fairly negotiated, and that the terms do not contradict state guidelines, the agreement will almost always receive court approval. In most states, the agreement then becomes a binding court order or “decree,” and the parents or other parties to the agreement must adhere to it or face legal consequences. For example, if a child support settlement agreement has been converted into a court order, and the agreement is violated by a father who repeatedly fails to make support payments on time, the mother can go to court to enforce her rights to child support payments under the order, and the father will face additional fines or even jail time if he fails to meet his child support obligations under the order.

Free Consultation with a Utah Child Support Lawyer

If you have a question about child support or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will aggressively fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

How to Adopt

Once you have decided that you want to adopt a child, figuring out how to begin an adoption can be quite challenging. One of the first steps is to do decide which type of adoption is right for you. Prospective parents may choose to work with an adoption agency or proceed with an “independent” adoption without agency involvement. Also, birth parents and adoptive parents must decide how much contact they want with one another. Additionally, prospective parents must follow state regulations mandating the “home study” process, court approval, and other steps along the way. This sub-section includes articles and resources to help you get started and successfully complete the adoption process.

How to Adopt

Locating a Child to Adopt

Unless you are seeking to adopt a specific child the first question many would-be adoptive parents must face is how to locate a child in need of adoption. Common methods for identifying an adoptable child include the following;

Adoption agencies and government organizations may facilitate adoption and provide other helpful services that ensure that parents are matched with appropriate children in need of adoption. Acting as a foster parent may lead to a successful adoption, though not all foster relationships can result in an adoption.

Surrogacy, contracting to have someone bear a child on your behalf; can help ensure a genetic relationship between the adoptive parent and child, although surrogates are also used in circumstances where the child has no biological relationship with either of the adoptive parents.

Doctors, lawyers, and religious organizations may be aware of children in need of adoption as a result of their contact with the community. Your social network, the internet, and paid advertisement are other methods a parent seeking a child to adopt may publicize their availability and interest.

Home Study in Adoptions

All states require prospective parents to complete a “home study.” This process ensures that adoptive families are prepared and educated sufficiently for the adoption. Home study also provides information about the intending parents to establish that they are capable of providing a healthy environment for an adopted child. Specific requirements for home study vary greatly, but there are some common elements.

Many home studies require prospective parents attend training focused on the challenges raising an adopted child. Interviews are quite common and several of them may be required. Home visits ensure that state licensing standards are met. Health and income statements intend to ensure that a serious health or financial problem will not jeopardize the adopted child. Background checks, autobiographical statements, and references help establish that the person has no record of criminal activity or child abuse and help ensure that prospective parents will provide a home free of abuse or neglect.

Petitioning the Court for an Adoption

Although details may vary greatly, adoptions require a petition to the appropriate court. A petition, at minimum, will typically identify all parties, request the termination of parental rights of the birth parents, if any, and urge that the adoptive parents be granted custody of the child.

Proceedings and petitions may be quite complicated. Rules can vary greatly between jurisdictions and are nearly always fairly complicated. Retaining an agency, attorney, or both may be necessary to assist in representation.

Free Consultation with Adoption Lawyer in Utah

If you have a question about a stepchild adoption or if you need a lawyer in Utah, please call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Utah Divorce Business Valuations Attorney

Determining the value of a business can be a major obstacle to overcome in arriving at an asset division settlement in a divorce. At our Salt Lake City family law firm, we regularly handle cases that involve complex assets such as businesses. Whether your business is a professional practice or a retail establishment, you most likely will need expert appraisal of its value.

Utah Divorce Business Valuations Attorney

Many of our clients who have business valuation concerns are preparing to exit long-term marriages. When a business has been in operation during a marriage, it can be difficult to determine how a spouse’s nonmarital contribution will figure into any equation. This and other complex issues related to business valuations underscore the importance of working with an experienced family law attorney.

Here To Help You Make Informed Decisions About Investment Division

We regularly work together with professional appraisers to help our clients obtain accurate business valuations. The appraisers whom we hire know full well how easy it is for the “other side” to seek to deflate income or otherwise distort the value of business assets. We are prepared to stand up for your rights, beginning with a correct business valuation effort.

Utah Child Custody Lawyer

The determination of child custody in a divorce or separation will have a significant and long-lasting impact on you and your children. Child custody is typically the most emotional aspect of a divorce, and the task of determining child custody and visitation can be very complex.

Protecting The Best Interests Of The Child

In determining child custody matters, the law places the best interests of the child above all other considerations. However, parents do not always agree on what is in the best interests of the child. Certain issues may make custody complex. If you are getting divorced or separated and your ex is requesting more access than you feel is in the child’s best interests, it is very important to consult with an experienced child custody lawyer.

Our knowledge of Utah child custody laws allows us to facilitate the development of the required child custody and parenting plan in an effective and efficient manner. We can also assist you with modifications to child custody orders should the need arise.

If you are engaged in a child custody dispute, our aggressive lawyers are here to fight for your rights. While a prostrated legal battle is hardly ever in the child’s best interests, operating from a position of strength is a key element in achieving what is best for you and your child.

Utah Alimony Attorneys

One household becomes two after a divorce, and some spouses often face an uncertain financial future after the marriage ends. In some cases, one spouse may be ordered to pay alimony to another, if certain circumstances apply.

Utah Alimony Arrangements

When divorcing couples disagree on the amount and length of time of alimony payments, the court will make a determination based on a number of factors, including:

  • The income and earning capacity of each spouse
  • The overall financial situation of each spouse
  • The duration of the marriage
  • Misconduct of either spouse during the marriage

Whether you are seeking alimony in a divorce or your ex is seeking alimony from you, it is important to have an experienced attorney protecting your interests.

Our divorce lawyers have successfully handled numerous alimony matters for clients throughout Utah.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506