As a Boise Attorney people often ask me "what will happen" or "why does the law seem inconsistent" or "why is the law unfair"? Often the law can seem inconsistent or unfair or even unsure primarily because every case depends upon its own set of circumstances. For example, I may be able to explain what will happen in the course of a divorce, a criminal law case or a bankruptcy and I may be able to give you a good idea of the outcome, but no attorney can tell you exactly what will happen. The law is often a guide to help a judge make a decision. In order for the law to be fair, a judge has to look at each individual circumstance and apply the law to that. That is why it is so important to have a lawyer who can present your case clearly and who can use the relevant facts to make your case.
Let's look at some examples of how this works in the law. Take DUI, for example. The law is very specific that a DUI is a crime and it occurs when you have a blood alcohol level of .08% or above. The law further says that with a first time DUI you will completely have your license suspended for 30 days. Beyond that, the law begins to give ranges. Your license will be suspended for at least another 60 days after the absolute suspension but could be suspended for up to 150 days. You might get jail time and your fine will be somewhere between $0.00 (unlikely) and $1,000. The law isn't terribly specific on these things. The resulting penalties are dependent upon the circumstances of your case. Were you driving recklessly? Have you had other alcohol related or driving related crimes? Are you a contributing member of society? All of these types of factors will be presented to the judge by your Boise Criminal Lawyer and will have a bearing upon what ultimately happens.
Let's also look at divorce. The same thing happens in divorce cases, with the exception of what ultimately happens is far less specific than DUI law. Let's take community property as an example. In general the law says that anything acquired during a marriage with community funds is community property. Let's say that you decide to divorce and your soon-to-be ex-spouse acquired a bunch of "play" things, things he or she used for their sole benefit and which added no value to the community. Technically under the law this property is community property because it was acquired with community funds during the marriage. It doesn't take a Boise Divorce Attorney to understand that that doesn't sound fair. While there is no way to argue that it is separate property you certainly could ask for an unequal but equitable division of the community debt if you never benefited from the property. Now, there isn't exactly a law that says that, but that is an example of using the particular facts of your case to argue your point. Of course, you and your divorce attorney would have to be able to produce the evidence and show how it is relevant, but a judge may find that dividing the debt unequally would be fair in this circumstance.
Another example of how the law is applied differently in divorce is military divorce. If the law were applied to active service people it could have a very unfair outcome. For example, to require a member of the military to respond to a summons within 20 days while they are on active duty simply may not be practical.
Let's look at one more example in the area of bankruptcy. Bankruptcy law says that student loan debt is not dischargeable. Let's say that your monthly income is $1,000 and your monthly student loan payment is $700. Again, it doesn't take a Boise Bankruptcy Attorney to tell you that you simply aren't going to make ends meet. This is why there is a very narrow exception in bankruptcy law that allows you to show evidence of how being responsible for your student loans can cause extreme hardship. This law allows the bankruptcy judge to discharge student loan debt on this basis. If it weren't applied this way, the law wouldn't be fair.
There are too many variations in circumstances for the law to fit every case. If the law were to fit every case then you would have some very unfair results. If you have a legal issue and you need to speak to a Boise Divorce Attorney, a Boise Criminal Attorney or a Boise Bankruptcy Attorney, give us a call, (208) 472-2383 and see what we can do for you.
Monday, April 30, 2012
Wednesday, April 25, 2012
Boise Bankruptcy Attorneys - Bankruptcy in Idaho - Debt Counseling
Bankruptcy Requirements - Debt Counseling
Often before anyone considers bankruptcy or steps foot in a Boise Bankruptcy Attorney's office they have tried to pay off their debt on their own or they may have even gone to credit counseling. Even though many have taken steps on their own to improve their ability to be financially stable, the amended 2005 Bankruptcy Code requires that anyone who files for bankruptcy must take not one, but two debtor education classes.
Pre-Bankruptcy Debt Counseling
The first debt education course must be taken before you file for bankruptcy. This must be done within 6 months of the actual filing. This debt counseling focuses on helping individuals focus on ways that they might be able to pay off their debt on their own, without filing for bankruptcy. After you have completed this course you will be given a certificate of completion. Your bankruptcy lawyer will attach and file this with your bankruptcy petition.
Money Management Education
The second debt education class must be completed before your bankruptcy is approved. You must complete this education course otherwise your debts will not be discharged. This class focuses on personal finances. It teaches you how to budget, use credit wisely, how to manage your money and how to start saving, instead of spending. Upon completion of this course your bankruptcy attorneys will file the form evidencing completion and your bankruptcy can go forward.
How do you know where to go for counseling?
There are a lot of companies that would like you to come to them for debt counseling. The Federal Bankruptcy Court has a list of approved credit counselors which you can get from your Boise Bankruptcy Attorney. In order to be approved you must use one of these sources.
The policy behind the change in the Federal Bankruptcy Code was to ensure that people wouldn't just rack up debt and then use bankruptcy as an easy way out. While the majority of people who resort to bankruptcy are fine people who have had serious circumstances that effect their finances like divorce, illness or loss of a job, some people don't take financial responsibility seriously. Even though these courses are required to ensure that people understand the seriousness of bankruptcy, they do provide useful information such as how your finances change due to divorce, or how to approach a creditor and ask for help in paying off the debt instead of defaulting. Sometimes we are perfectly able to handle ourselves financially until a severe set of circumstances present themselves. As a Boise Bankruptcy Attorney I have seen individuals turn to bankruptcy because of a personal injury or a divorce or termination from their job of twenty years. These are good people who know how to manage their finances but the circumstances become so grave that they do not have a choice. Debt counseling may not help these people but, like with most things, uniformity wins the day. The list of debt counselors provided by the Federal Bankruptcy Court are accredited and highly effective counselors. Even if you think counseling won't help, you might be surprised.
If you are considering bankruptcy and would like to speak to one of our Boise Bankruptcy Lawyers give us a call, (208) 472-2383 and see what we can do for you.
Often before anyone considers bankruptcy or steps foot in a Boise Bankruptcy Attorney's office they have tried to pay off their debt on their own or they may have even gone to credit counseling. Even though many have taken steps on their own to improve their ability to be financially stable, the amended 2005 Bankruptcy Code requires that anyone who files for bankruptcy must take not one, but two debtor education classes.
Pre-Bankruptcy Debt Counseling
The first debt education course must be taken before you file for bankruptcy. This must be done within 6 months of the actual filing. This debt counseling focuses on helping individuals focus on ways that they might be able to pay off their debt on their own, without filing for bankruptcy. After you have completed this course you will be given a certificate of completion. Your bankruptcy lawyer will attach and file this with your bankruptcy petition.
Money Management Education
The second debt education class must be completed before your bankruptcy is approved. You must complete this education course otherwise your debts will not be discharged. This class focuses on personal finances. It teaches you how to budget, use credit wisely, how to manage your money and how to start saving, instead of spending. Upon completion of this course your bankruptcy attorneys will file the form evidencing completion and your bankruptcy can go forward.
How do you know where to go for counseling?
There are a lot of companies that would like you to come to them for debt counseling. The Federal Bankruptcy Court has a list of approved credit counselors which you can get from your Boise Bankruptcy Attorney. In order to be approved you must use one of these sources.
The policy behind the change in the Federal Bankruptcy Code was to ensure that people wouldn't just rack up debt and then use bankruptcy as an easy way out. While the majority of people who resort to bankruptcy are fine people who have had serious circumstances that effect their finances like divorce, illness or loss of a job, some people don't take financial responsibility seriously. Even though these courses are required to ensure that people understand the seriousness of bankruptcy, they do provide useful information such as how your finances change due to divorce, or how to approach a creditor and ask for help in paying off the debt instead of defaulting. Sometimes we are perfectly able to handle ourselves financially until a severe set of circumstances present themselves. As a Boise Bankruptcy Attorney I have seen individuals turn to bankruptcy because of a personal injury or a divorce or termination from their job of twenty years. These are good people who know how to manage their finances but the circumstances become so grave that they do not have a choice. Debt counseling may not help these people but, like with most things, uniformity wins the day. The list of debt counselors provided by the Federal Bankruptcy Court are accredited and highly effective counselors. Even if you think counseling won't help, you might be surprised.
If you are considering bankruptcy and would like to speak to one of our Boise Bankruptcy Lawyers give us a call, (208) 472-2383 and see what we can do for you.
Monday, April 23, 2012
Boise Criminal Lawyers - DUI Attorneys - License Suspension
License Suspension in Idaho
I have often discussed license suspension in my blogs primarily because as a Boise Criminal Lawyer I deal regularly with individuals who have their licenses taken away due to a DUI or a DWP. These are the most frequent causes of suspensions. Another area where I see individuals have their driving privileges taken away for reasons other than DUI and DWP is in the commercial vehicle arena. The Idaho Code outlines several circumstances that result in a minimum of one year license suspensions for carries of commercial licenses.
Commercial Vehicles
Obviously, the Idaho Code includes a license suspension if a driver of a commercial vehicle is convicted of a DUI. However, you will also have it taken away if you leave the scene of an accident, if you commit a felony while operating a vehicle, causing a fatality while operating a commercial vehicle and for refusing to submit to tests to determine your blood alcohol level. In addition, if you are convicted of a DUI, a DWP or any of the other above named situations and you are transporting hazardous materials (which requires a placard), your license will be suspended for a minimum of 3 years. Another interesting situation I have seen as a criminal lawyer is something known as an "imminent hazard disqualification". You may be disqualified from operating a commercial vehicle if the federal motor vehicle carrier administration determines that your driving constitutes a imminently hazardous.
As a Boise Criminal Attorney people often ask me if these are the only situations that result in loss of a commercial license. The answer, however, is no. There are numerous other situation that can be found in the Idaho Code. Also, just a reminder the legal limit for a commercial driver is .04% and anything above that level will result in a DUI. Also, if your commercial license is revoked, any other driver's license you hold, including a Class D license will be suspended. One other reminder, you can be convicted of a DUI without ever taking a drink of alcohol. Having drugs in your system, including marijuana and possibly over the counter medications, will also result in a DUI.
What Can You Do?
What can you do if you find yourself in a situation where you might lose your livelihood if you are convicted a circumstance that might result in the lose of your license? Your best bet is to find a criminal attorney who has the experience to help you. You need to act quickly and you need to make certain no stone is left unturned. If you have found yourself in a situation where you need a Boise Criminal Defense Lawyer, please give us a call at (208) 472-2383 and see what one of our attorneys can do for you.
I have often discussed license suspension in my blogs primarily because as a Boise Criminal Lawyer I deal regularly with individuals who have their licenses taken away due to a DUI or a DWP. These are the most frequent causes of suspensions. Another area where I see individuals have their driving privileges taken away for reasons other than DUI and DWP is in the commercial vehicle arena. The Idaho Code outlines several circumstances that result in a minimum of one year license suspensions for carries of commercial licenses.
Commercial Vehicles
Obviously, the Idaho Code includes a license suspension if a driver of a commercial vehicle is convicted of a DUI. However, you will also have it taken away if you leave the scene of an accident, if you commit a felony while operating a vehicle, causing a fatality while operating a commercial vehicle and for refusing to submit to tests to determine your blood alcohol level. In addition, if you are convicted of a DUI, a DWP or any of the other above named situations and you are transporting hazardous materials (which requires a placard), your license will be suspended for a minimum of 3 years. Another interesting situation I have seen as a criminal lawyer is something known as an "imminent hazard disqualification". You may be disqualified from operating a commercial vehicle if the federal motor vehicle carrier administration determines that your driving constitutes a imminently hazardous.
As a Boise Criminal Attorney people often ask me if these are the only situations that result in loss of a commercial license. The answer, however, is no. There are numerous other situation that can be found in the Idaho Code. Also, just a reminder the legal limit for a commercial driver is .04% and anything above that level will result in a DUI. Also, if your commercial license is revoked, any other driver's license you hold, including a Class D license will be suspended. One other reminder, you can be convicted of a DUI without ever taking a drink of alcohol. Having drugs in your system, including marijuana and possibly over the counter medications, will also result in a DUI.
What Can You Do?
What can you do if you find yourself in a situation where you might lose your livelihood if you are convicted a circumstance that might result in the lose of your license? Your best bet is to find a criminal attorney who has the experience to help you. You need to act quickly and you need to make certain no stone is left unturned. If you have found yourself in a situation where you need a Boise Criminal Defense Lawyer, please give us a call at (208) 472-2383 and see what one of our attorneys can do for you.
Monday, April 16, 2012
Boise Criminal Lawyers - Idaho Criminal Defense Attorneys - Aggravated DUI
Aggravated DUI and Criminal Defense
As a Boise Criminal Lawyer I am often asked if a DUI is a misdemeanor or a felony. In general a first or a second time DUI, within 10 years, is a misdemeanor. Thereafter the DUI becomes a felony. There is an exception to this case, however. An aggravated DUI, whether it is your first DUI or not, is a felony. Another question I regularly hear as a Boise Criminal Defense Attorney is, what makes something an aggravated crime? For a DUI to be considered aggravated, the intoxicated driver must have cause great bodily harm to someone, other than him or herself. This harm includes permanent disability and disfigurement. It is the act of causing extensive harm to another that makes something aggravated.
A further distinguishing factor between an aggravated DUI and a "regular" driving under the influence charge lies in the penalty. The penalty is accelerated, in the sense that it very quickly becomes very severe. A charge of this type, even if it is your first drunk driving charge, may result in you being sentenced to the state penitentiary for up to 15 years. A third time driving under the influence charge (within 10 years) , however, only carries a maximum 10 year state penitentiary sentence.
Aggravated DUI and Personal Injury
An aggravated driving under the influence charge is one of those areas that can have a cross over between criminal law and civil law. If you are charged with this type of DUI the state of Idaho can and will charge you with a crime that requires criminal defense. In addition, the party to whom you caused the injury, or their family (if the victim died) can sue you in civil court for a personal injury. So instead of facing just the DUI charge, you may be facing a civil suit as well.
If you have been charged with an aggravated DUI or any other criminal charge in Idaho and you need to speak to an attorney, please give us a call and speak with one of our Boise Criminal Lawyers, (208) 472-2383. Give us a call now.
As a Boise Criminal Lawyer I am often asked if a DUI is a misdemeanor or a felony. In general a first or a second time DUI, within 10 years, is a misdemeanor. Thereafter the DUI becomes a felony. There is an exception to this case, however. An aggravated DUI, whether it is your first DUI or not, is a felony. Another question I regularly hear as a Boise Criminal Defense Attorney is, what makes something an aggravated crime? For a DUI to be considered aggravated, the intoxicated driver must have cause great bodily harm to someone, other than him or herself. This harm includes permanent disability and disfigurement. It is the act of causing extensive harm to another that makes something aggravated.
A further distinguishing factor between an aggravated DUI and a "regular" driving under the influence charge lies in the penalty. The penalty is accelerated, in the sense that it very quickly becomes very severe. A charge of this type, even if it is your first drunk driving charge, may result in you being sentenced to the state penitentiary for up to 15 years. A third time driving under the influence charge (within 10 years) , however, only carries a maximum 10 year state penitentiary sentence.
Aggravated DUI and Personal Injury
An aggravated driving under the influence charge is one of those areas that can have a cross over between criminal law and civil law. If you are charged with this type of DUI the state of Idaho can and will charge you with a crime that requires criminal defense. In addition, the party to whom you caused the injury, or their family (if the victim died) can sue you in civil court for a personal injury. So instead of facing just the DUI charge, you may be facing a civil suit as well.
If you have been charged with an aggravated DUI or any other criminal charge in Idaho and you need to speak to an attorney, please give us a call and speak with one of our Boise Criminal Lawyers, (208) 472-2383. Give us a call now.
Friday, April 13, 2012
Boise Divorce Attorney - Idaho Family Law Lawyer - Adoption in Idaho
Adoption - Family Law
Adoption falls into the category of family law, not because it involves divorce issues necessarily, but because it involves the family. In the Idaho Code the law for adoption falls under "juvenile proceedings". This is often confusing to people because generally we tend to think of juvenile proceedings as criminal law associated with minors. It is simply located here because adoption generally refers to children. In Idaho, however, you can also have adult adoption. As a Boise Family Law attorney people often ask me who can adopt and who can be adopted. This not only involves the people, but the circumstances surrounding the adoption.
Who can adopt and who can be adopted?
Adult Adoption in Idaho
Adoption law in Idaho has evolved over the years. At one point adult adoption was an acceptable thing to do. In the early 90's that was change to disallow the adoption of adults only to return once again to the current status of allowing adult adoption.
As a Boise Family Law Lawyer, I often get confused looks when I speak about adult adoption. Why would this ever happen? In general this situation revolves around an adult who has been cared for as a child or young person by someone who was not their parent. Why the family never adopted the adult as a child can be as varied as snowflakes. As the law stands currently, you must show that there has been a parent/child relationship for at least 1 year and that a substantial family relationship has been formed. So why would someone want to be adopted as an adult? Here too there can be many many reasons, but in general the adoption process legally creates a parent/child relationship. From a probate and estate planning perspective, a child can inherit without the formality of a will. It acknowledges the family relationship that has been established.
Adoption of a Child - Consent
When we speak of adoption, we generally refer to children. The Idaho Code establishes how a child is adopted, who can adopt and what the respective rights of the parties involved are. An interesting change in the rights and responsibilities is in respect to unmarried fathers. At one point the law would not allow a father's rights to be terminated without his consent. The consent had to be actual or at least established by a failure of the father to come forward. Now the law establishes that there must be an active role in the interest and upbringing of a child or the father stands to loose his rights, without his consent. In fact, the Idaho Code places the rights of the perspective adoptive parents, the child and the mother over that of an unmarried father, when that father has not taken his rights and responsibilities seriously.
Another interesting issue having to do with consent and adoption that I see as a Boise Family Law Lawyer is as it relates to divorce law. If a couple is in the process or divorce, but not legally separated, neither party can adopt a child without the consent of the other party. From a divorce attorney's perspective this is logical because it prevents a party from being given the responsibility of parenthood via adoption when there is an impending divorce. The adoption would create custody and child support issues and therefore the law requires both parties to agree to this responsibility.
Unmarried Persons Seeking to Adopt
While there is no specific law referring to who can adopt, we often think of adoption by a married couple. Idaho allows for unmarried persons to adopt when it is shown through the social services investigation that they can provide a stable home life for the child.
Age of Adoptive Parent
Another factor that can effect who can adopt is age. You must be at least 15 years older than the person being adopted or 25 years or older. This, however, does not apply if you are married to the child's parent and you can show you have established a substantial parent/child relationship for at least 1 year.
If you are seeking to adopt a child or have another Family Law issue, including divorce, custody, child support, modification or domestic violence, please give us a call, (208) 472-2383 and see what we can do for you.
Adoption falls into the category of family law, not because it involves divorce issues necessarily, but because it involves the family. In the Idaho Code the law for adoption falls under "juvenile proceedings". This is often confusing to people because generally we tend to think of juvenile proceedings as criminal law associated with minors. It is simply located here because adoption generally refers to children. In Idaho, however, you can also have adult adoption. As a Boise Family Law attorney people often ask me who can adopt and who can be adopted. This not only involves the people, but the circumstances surrounding the adoption.
Who can adopt and who can be adopted?
Adult Adoption in Idaho
Adoption law in Idaho has evolved over the years. At one point adult adoption was an acceptable thing to do. In the early 90's that was change to disallow the adoption of adults only to return once again to the current status of allowing adult adoption.
As a Boise Family Law Lawyer, I often get confused looks when I speak about adult adoption. Why would this ever happen? In general this situation revolves around an adult who has been cared for as a child or young person by someone who was not their parent. Why the family never adopted the adult as a child can be as varied as snowflakes. As the law stands currently, you must show that there has been a parent/child relationship for at least 1 year and that a substantial family relationship has been formed. So why would someone want to be adopted as an adult? Here too there can be many many reasons, but in general the adoption process legally creates a parent/child relationship. From a probate and estate planning perspective, a child can inherit without the formality of a will. It acknowledges the family relationship that has been established.
Adoption of a Child - Consent
When we speak of adoption, we generally refer to children. The Idaho Code establishes how a child is adopted, who can adopt and what the respective rights of the parties involved are. An interesting change in the rights and responsibilities is in respect to unmarried fathers. At one point the law would not allow a father's rights to be terminated without his consent. The consent had to be actual or at least established by a failure of the father to come forward. Now the law establishes that there must be an active role in the interest and upbringing of a child or the father stands to loose his rights, without his consent. In fact, the Idaho Code places the rights of the perspective adoptive parents, the child and the mother over that of an unmarried father, when that father has not taken his rights and responsibilities seriously.
Another interesting issue having to do with consent and adoption that I see as a Boise Family Law Lawyer is as it relates to divorce law. If a couple is in the process or divorce, but not legally separated, neither party can adopt a child without the consent of the other party. From a divorce attorney's perspective this is logical because it prevents a party from being given the responsibility of parenthood via adoption when there is an impending divorce. The adoption would create custody and child support issues and therefore the law requires both parties to agree to this responsibility.
Unmarried Persons Seeking to Adopt
While there is no specific law referring to who can adopt, we often think of adoption by a married couple. Idaho allows for unmarried persons to adopt when it is shown through the social services investigation that they can provide a stable home life for the child.
Age of Adoptive Parent
Another factor that can effect who can adopt is age. You must be at least 15 years older than the person being adopted or 25 years or older. This, however, does not apply if you are married to the child's parent and you can show you have established a substantial parent/child relationship for at least 1 year.
If you are seeking to adopt a child or have another Family Law issue, including divorce, custody, child support, modification or domestic violence, please give us a call, (208) 472-2383 and see what we can do for you.
Monday, April 9, 2012
Boise Divorce Attorneys - Idaho Family Law Lawyers - Grandparents' Rights
Grandparents' Rights
Military Issues
As a Boise Divorce Attorney I often receive calls from concerned grandparents who want to know what if they have any rights in regard to their grandchildren. Sometimes the grandparents have had a very active parent-like role in the grandchildren’s lives. Sometimes their own son or daughter is not married to the other parent and they are not allowed to see the grandchild at all. Whatever the situation is, in general these grandparents want to have or to maintain an active role in their grandchildren’s lives.
As a Boise Family Law Lawyer another issue I hear confusion about is grandparent's rights vs. grandparent's receiving custody. These are two separate issues. Grandparent's rights refers to visitation with the grandchildren. Custody refers to the grandparents actually getting custody of their grandchildren.
Idaho Law
What does Idaho Law say about grandparent’s rights? Not much. The Idaho Code says that when it is in the grandchild’s best interest visitation may be considered. In general, if the grandparent has had a very active role in the child’s life they may ask the court to consider granting some visitation to them. When the grandparent has been denied visitation or has not had an active role, the court is very hesitant to give them visitation.
Military Issues
In my capacity of a divorce lawyer, I often handle military divorce cases. Grandparent’s rights also come up in this area. Although the law isn’t applied any differently, there is the potential for the grandparent to have access to visitation that wouldn’t be provided for in a civilian case. Idaho law allows a member of the military who is on active duty to delegate their right to visitation by power of attorney to whomever they want. If a grandparent is denied visitation by a custodial parent, they may be able to exercise visitation if their son or daughter who is in the military gives them the right of visitation through a power of attorney.
If you have a custody or visitation issue, or any other family law issue and would like to speak to one of our divorce lawyers, please give us a call, (208) 472-2383 and see what we can do for you.
Wednesday, April 4, 2012
Boise Bankruptcy Lawyers - Student Loans; Can They Be Discharged in Bankruptcy?
Bankruptcy and Student Loans
As a Boise Bankruptcy Lawyer one of the most frequent questions I get from individuals considering bankruptcy is, "Can student loans be discharged in Bankruptcy?" In general the answer is no, they are not dischargeable. This is the answer for the majority of people but currently there are two possible sort loop holes that would allow student loans to be discharged, if the proper set of circumstances are met.
Undue Hardship
Student loans are non-dischargeable in bankrutpcy unless it can be shown that there is undue hardship. Every bankruptcy attorney knows that this is a difficult standard to meet, but not impossible. The bankruptcy court generally looks at three things known as the Brunner test. Will the debtor not be able to maintain a minimal standard of living if he or she must pay the student loans? Is there evidence that there are additional circumstances exist indicating that this state of affairs is likely to persist for a large part of the repayment period of the student loans? Has the debtor made a good faith effort in repaying his or her student loans?
In order to qualify for the undue hardship exception you must file what is known as an adversary proceeding. You must show the court the above information and from this they will make a decision whether or not your student loan debt should be discharged.
Alternative to Undue Hardship for Discharge of Student Loan Debt in Bankruptcy
Every bankruptcy lawyer knows that there are always loop holes. In 2009 the 9th Circuit Court of Appeals heard a case that created just such loop hole. Mr. Espinosa filed for Chapter 13 Bankruptcy. Chapter 13 is a form of bankruptcy that does not discharge the debt, but creates a new repayment plan. There isn't a discharge because the individual has a sufficient income to allow reorganization and repayment of the debt. In his repayment plan, Mr. Espinosa's bankruptcy lawyers put forth the repayment plan for the student loans. They said he would repay the loan absent the fees and costs attributed to the loans. The bankruptcy attorneys included a notice that said that if the student loan lenders failed to object to the repayment plan the plan would be confirmed. Their attorneys failed to read the repayment plan closely. Mr. Espinosa completed the repayment of the balance of the student loans absent fees and costs. The student loan company's lawyers filed for a completion of payment. The court found that the student loan company had been sufficiently notified of the repayment plan and their failure to object resulted in a discharge of the remainder of the fees and costs associated with the student loans.
Legal Loop Holes
Because there are legal loop holes, every lawyer, whether they are a bankruptcy lawyer or a divorce lawyer, knows that they need to keep a keen eye open to possibilities. If Mr. Espinosa's bankruptcy lawyers hadn't taken the chance to alter the repayment terms, he would have had to pay the entire loan back, fees and all.
If you would like to speak to an experience Boise Bankruptcy Lawyer who knows how to help you discharge student loans, give us a call, (208) 472-2383 and see what we can do for you.
As a Boise Bankruptcy Lawyer one of the most frequent questions I get from individuals considering bankruptcy is, "Can student loans be discharged in Bankruptcy?" In general the answer is no, they are not dischargeable. This is the answer for the majority of people but currently there are two possible sort loop holes that would allow student loans to be discharged, if the proper set of circumstances are met.
Undue Hardship
Student loans are non-dischargeable in bankrutpcy unless it can be shown that there is undue hardship. Every bankruptcy attorney knows that this is a difficult standard to meet, but not impossible. The bankruptcy court generally looks at three things known as the Brunner test. Will the debtor not be able to maintain a minimal standard of living if he or she must pay the student loans? Is there evidence that there are additional circumstances exist indicating that this state of affairs is likely to persist for a large part of the repayment period of the student loans? Has the debtor made a good faith effort in repaying his or her student loans?
In order to qualify for the undue hardship exception you must file what is known as an adversary proceeding. You must show the court the above information and from this they will make a decision whether or not your student loan debt should be discharged.
Alternative to Undue Hardship for Discharge of Student Loan Debt in Bankruptcy
Every bankruptcy lawyer knows that there are always loop holes. In 2009 the 9th Circuit Court of Appeals heard a case that created just such loop hole. Mr. Espinosa filed for Chapter 13 Bankruptcy. Chapter 13 is a form of bankruptcy that does not discharge the debt, but creates a new repayment plan. There isn't a discharge because the individual has a sufficient income to allow reorganization and repayment of the debt. In his repayment plan, Mr. Espinosa's bankruptcy lawyers put forth the repayment plan for the student loans. They said he would repay the loan absent the fees and costs attributed to the loans. The bankruptcy attorneys included a notice that said that if the student loan lenders failed to object to the repayment plan the plan would be confirmed. Their attorneys failed to read the repayment plan closely. Mr. Espinosa completed the repayment of the balance of the student loans absent fees and costs. The student loan company's lawyers filed for a completion of payment. The court found that the student loan company had been sufficiently notified of the repayment plan and their failure to object resulted in a discharge of the remainder of the fees and costs associated with the student loans.
Legal Loop Holes
Because there are legal loop holes, every lawyer, whether they are a bankruptcy lawyer or a divorce lawyer, knows that they need to keep a keen eye open to possibilities. If Mr. Espinosa's bankruptcy lawyers hadn't taken the chance to alter the repayment terms, he would have had to pay the entire loan back, fees and all.
If you would like to speak to an experience Boise Bankruptcy Lawyer who knows how to help you discharge student loans, give us a call, (208) 472-2383 and see what we can do for you.
Monday, April 2, 2012
Boise Divorce Attorneys - Idaho Criminal Lawyers - Custody and Safe Haven
Idaho Safe Haven Law
Some years ago Safe Haven Laws did not exist. If you left your child, at say a church or a hospital, you could be prosecuted for the criminal charge of abandonment. If you had a baby you didn't want you would have to go through an adoption and termination process to relinquish your parental rights. If you did anything else, such as drop the baby off, neglect the baby or otherwise fail to act appropriately as a parent, you could face criminal charges and require the services of a criminal lawyer. In addition you would have to wait for the adoptive parents' Family Law Attorney to file the appropriate paperwork on behalf of the adoptive parents, get the termination of parental rights paperwork and hearing and have the adoption completed before your parental responsibility was relieved. This process, because it involves home studies and other evaluations, can take a long time. Your desire to care for the child and your ability to do so may very well be compromised in that length of time especially if you didn't wan the child in the first place.
The Idaho Safe Haven Act allowed parents to lawfully "abandon" their child. The act requires that the child be left at a safe haven and that it be done within the first 30 days of the child's life. The child has to be delivered by the custodial parent and they must express the intent not to want the child back. The safe haven will take temporary physical custody of the child and the parent won't be subject to the criminal charge of abandonment.
Once a child has been abandoned to a safe haven, the facility must notify the police who will then take protective custody of the child and deliver him or her to the care and control of the Department of Health and Welfare. A shelter care hearing is held to place physical custody with the Health and Welfare. Health and Welfare is required to to place the child with potential adoptive parents as soon as possible so that the child may bond normally with parents. During the first thirty days, the Department does investigative work to ensure the child was not wrongfully abandoned or kidnapped and abandoned.
Termination of Parental Rights
Once the Department of Health and Welfare has physical custody of the child and they have gone through the investigative process in the first thirty days, the department will move to the stage of termination of parental rights. As a Boise Divorce Attorney I have seen the following scenario. A young mother gives birth to a child and doesn't want it. She doesn't want to deal with having a Family Law Attorney set up a an adoption or a Custody Lawyer filing for paternity tests or setting up visitation or the like. Usually, out of fear, she abandons the child. As a custody lawyer I hear from the the father or the father's parents who want to keep the child and not have their son's parental rights terminated. Is there any thing they can do? The Idaho Code provides for a registration of parental rights. The parent must go to the Department of Vital Statistics and fill out the appropriate paperwork. Before the Department of Health and Welfare proceeds with the termination, they will check the registry to see if anyone is claiming parental rights and who therefore has an interest in the termination. It is critical that a claim of parental rights be done immediately because if it is not done in a timely fashion both parent's parental rights will be terminated.
Liability
When a child is abandoned to a safe haven, the Idaho Code protects the employees of the facility where the child is left from civil and criminal liability. It also protects the police officer who arrives to place the child in protective custody. What this means is if something happens to the child, no criminal charges or civil suit may be made against the employee or the police.
Adoption
Once the child has been placed with prospective adoptive parents, the parental rights have been terminated and all the requirements for the adoption process have been complied with, the Department of Health and Welfare will terminate its custodial rights and the child will be allowed to be adopted. The Department has its own attorneys dealing with the custody and termination of their rights and the adoptive parents will have their lawyers who will actually file the adoption paperwork. At this point, the real parents have no further interest or say in the child, nor do they have a right to bring in their own attorney to have a say in the matter.
If you have questions regarding adoption, termination, custody, parental rights, divorce or any other family law issue and would like to speak to a Boise Family Law Attorney, give us a call
(208) 472-2383 and see what we can do for you.
Some years ago Safe Haven Laws did not exist. If you left your child, at say a church or a hospital, you could be prosecuted for the criminal charge of abandonment. If you had a baby you didn't want you would have to go through an adoption and termination process to relinquish your parental rights. If you did anything else, such as drop the baby off, neglect the baby or otherwise fail to act appropriately as a parent, you could face criminal charges and require the services of a criminal lawyer. In addition you would have to wait for the adoptive parents' Family Law Attorney to file the appropriate paperwork on behalf of the adoptive parents, get the termination of parental rights paperwork and hearing and have the adoption completed before your parental responsibility was relieved. This process, because it involves home studies and other evaluations, can take a long time. Your desire to care for the child and your ability to do so may very well be compromised in that length of time especially if you didn't wan the child in the first place.
The Idaho Safe Haven Act allowed parents to lawfully "abandon" their child. The act requires that the child be left at a safe haven and that it be done within the first 30 days of the child's life. The child has to be delivered by the custodial parent and they must express the intent not to want the child back. The safe haven will take temporary physical custody of the child and the parent won't be subject to the criminal charge of abandonment.
Once a child has been abandoned to a safe haven, the facility must notify the police who will then take protective custody of the child and deliver him or her to the care and control of the Department of Health and Welfare. A shelter care hearing is held to place physical custody with the Health and Welfare. Health and Welfare is required to to place the child with potential adoptive parents as soon as possible so that the child may bond normally with parents. During the first thirty days, the Department does investigative work to ensure the child was not wrongfully abandoned or kidnapped and abandoned.
Termination of Parental Rights
Once the Department of Health and Welfare has physical custody of the child and they have gone through the investigative process in the first thirty days, the department will move to the stage of termination of parental rights. As a Boise Divorce Attorney I have seen the following scenario. A young mother gives birth to a child and doesn't want it. She doesn't want to deal with having a Family Law Attorney set up a an adoption or a Custody Lawyer filing for paternity tests or setting up visitation or the like. Usually, out of fear, she abandons the child. As a custody lawyer I hear from the the father or the father's parents who want to keep the child and not have their son's parental rights terminated. Is there any thing they can do? The Idaho Code provides for a registration of parental rights. The parent must go to the Department of Vital Statistics and fill out the appropriate paperwork. Before the Department of Health and Welfare proceeds with the termination, they will check the registry to see if anyone is claiming parental rights and who therefore has an interest in the termination. It is critical that a claim of parental rights be done immediately because if it is not done in a timely fashion both parent's parental rights will be terminated.
Liability
When a child is abandoned to a safe haven, the Idaho Code protects the employees of the facility where the child is left from civil and criminal liability. It also protects the police officer who arrives to place the child in protective custody. What this means is if something happens to the child, no criminal charges or civil suit may be made against the employee or the police.
Adoption
Once the child has been placed with prospective adoptive parents, the parental rights have been terminated and all the requirements for the adoption process have been complied with, the Department of Health and Welfare will terminate its custodial rights and the child will be allowed to be adopted. The Department has its own attorneys dealing with the custody and termination of their rights and the adoptive parents will have their lawyers who will actually file the adoption paperwork. At this point, the real parents have no further interest or say in the child, nor do they have a right to bring in their own attorney to have a say in the matter.
If you have questions regarding adoption, termination, custody, parental rights, divorce or any other family law issue and would like to speak to a Boise Family Law Attorney, give us a call
(208) 472-2383 and see what we can do for you.
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