Across State Lines
As a Boise Divorce Attorney I regularly get calls from individuals who are in the middle of divorce and/or a custody battle. I field all sorts of questions, but probably one of the top ten questions involves taking children out of state before, after or during a divorce.
Can I Take My Child Out of State?
Whether you can take your child out of state during, before or after a divorce depends in large part on what stage of the process you are in and what an order of the court says about it to you in your particular case. For example, if you are separated and have not even approached the court with divorce papers, you can leave the state of Idaho with your child without any court restraint, just like you could if you and your spouse were still together. However, that doesn't necessarily mean that it is a great idea to up and leave the state without permission or knowledge of the other parent. Inevitably, the other party may try to use that against you in a child custody determination and a judge may look at it as a lapse of judgement on your part.
If you have filed divorce papers or have been served divorce papers there will be included in that an order of the court which prohibits you from leaving the state of Idaho with your child for more than 48 hours if you don't have written permission of the other parent. This joint preliminary injunction also prohibits you from doing other things like squandering community income or destroying community property.
Once your divorce is final you may have the right to leave the state during your periods of custody unless otherwise forbidden by the court and so long as the child is returned to the state in order to effect the other party's exercise of custody or for the child to be present at necessary specific times such as to attend school.
What if I Have a Job in Another State?
Leaving Idaho for gainful employment may be an allowable reason for you to leave the state with your child. However, the above stated rules will still apply. If you are in the midst of a divorce, you will have to get the ok from the other parent. If you have already gotten a divorce you may move wherever you want. One caveat in that regard, however. If you move with your child, that move must not negatively impact the child or the other parent's visitation and if it does, the other party can motion to modify the child custody decree. And, as stated above, if you haven't filed yet, you can go where you want but remember how the court will look at your move particularly if you move without informing the other parent (which you never want to do because you could face parental kidnapping charges) or getting their permission; even if you have what seems like a justifiable reason such as a new job or neglect or abuse by the other parent. Also, if you move because of a job, always ask yourself if you could have gotten a comparable job in Idaho where you already live. Is it necessary for you to leave the state?
If you are seeking a divorce and need to speak to a Boise Family Law Lawyer, give us a call, 208-472-2383 and see what we can do for you. You will be glad you did.
Boise Attorney, Pat Kershisnik, has been practicing law in the Boise Area for over 20 years. In his blog he discusses many Idaho legal issues including divorce, custody, DUI, criminal law, bankruptcy, employment law, estate planning, probate, personal injury, workers comp and small business law.
Thursday, August 29, 2013
Friday, August 16, 2013
Boise Bankruptcy Attorney - Chapter 7 and Chapter 13 - 208-472-2383
Bankruptcy and the Means Test
While filing for bankruptcy is not overly difficult, there
are a number of important things to keep in mind. Before you can file you must run what is
known as the “means test”. The means
test determines which chapter of bankruptcy you will file under.
The means test looks at your income. If you exceed a statutory threshold you are
forced to file a Chapter 13 bankruptcy.
However, if after running the initial income test your income exceed the
“means”, you aren’t necessarily out of luck.
The means test also looks at certain expenses that will potentially
reduce your countable income.
The means test is several pages long, but it, in and of
itself, should not be intimidating. After
you go through the first several questions, you will know if your income is too
great to file for Chapter 7 bankruptcy.
If your income is not above the statutory level you need go no further.
Bankruptcy and Military Service
There are some interesting exceptions in the means test as
well. For example, if you are an active
member of the military and you incurred the majority of your debt while on
active duty, you qualify for a Chapter 7 automatically. There are also exceptions for members of the Guard.
Chapter 13
If you don’t qualify for a Chapter 7 Bankruptcy you can
explore a Chapter 13. Some people are
concerned about going that route because they want all their debts
discharged. However, a Chapter 13 might
actually work better in some cases. In
it you reaffirm debts and create a repayment plan. It allows you to save your house and other
items if you reaffirm. And while not all
of your debts are discharged if they are unsecured they will be.
Another consideration about filing out the means test is
family size. The more people in your
family, the greater the income you can have and stay within the means. Obviously, you would count your spouse and
your children. This can get tricky if you
are in the process of divorce, or you have already gone through a divorce. Can you count the kids if you only have shared
custody? What if you are engaged to be
married? Do you consider your fiancé part
of your household? These are all
questions your Boise Bankruptcy Attorney can discuss with you to help you
decide which bankruptcy route is best for you.
If you want to speak to an affordable and experienced Boise
Bankruptcy Attorney, please give us a call at 208-472-2383. You will be glad you did.
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