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.

Boise Divorce Attorney - 208-472-2383 - Child Custody Across State Lines

Child Custody Issues
Child Custody is a major issue involved in divorce law in Idaho.  As a Boise Divorce Attorney I see a range of child custody issues.  These issues range from which parent will have primary physical custody to whether Idaho can exercise jurisdiction over a child who is not living in the state of Idaho.

Child Custody Across State Lines
The custody of children who don't live in Idaho is regulated by the Uniform Child Custody Jurisdiction Act.  This is a law that has been adopted by all 50 states.  It looks at several factors to determine whether a state can exercise jurisdiction over a child who does not live in a particular state.

There are three basic scenarios that I see regularly.  Firstly, when a child has lived in Idaho and it is their home state.  One parent moves out of state with the child.  The parent who remained in Idaho can assert that Idaho has jurisdiction over the child and therefore Idaho should hear the custody case.  The second situation is when a family has resided in a state other than Idaho.  They move to Idaho as a family.  After a short period of time one parent moves back to the original state where the family lived.  This is a tougher situation.  The question Idaho has to address is, "had Idaho become the child's home state?"  To determine this, a court will look at relationships to the state.  If the child wasn't "established" in Idaho (school, doctor, friends, family, relationships) then Idaho will have a difficult time establishing jurisdiction and the other state may assert it's jurisdiction over the child.  The third situation results in complete lack of jurisdiction in Idaho.  If a child has never lived in Idaho but a parent does, that parent cannot ask Idaho to establish custody there.  They must return to the child's home state.

In all these situations, you can seek a divorce in Idaho if you have lived here for a period of time greater than six weeks.  However, even though Idaho will grant you a divorce the Idaho court may "bifurcate" your case.  That means that if your property is not located here and/or your children are not located here, the court will not hear that portion of your divorce.  Often people who need to get divorced fast, say to get remarried, choose this option.

If you are seeking a divorce or child custody and need to speak to a Boise Divorce Attorney, give us a call, 208-472-2383.  You will be glad you did.

Boise Divorce Attorney - 208-472-2383 - Enforcing a Child Custody Visitation Schedule

Child Custody Visitation
As the 4th of July approaches, I, like numerous other Boise Divorce Attorneys, are getting frantic calls about enforcing the holiday visitation schedule.  Without fail, these individuals are worried that the other parent won't honor the visitation order and they won't get their holiday visitation.  What can be done?

There are different approaches to enforcing a child custody visitation schedule.  There are two different approaches that I want to focus on today.  The first is by involving law enforcement.  The second is involving the court.  What are the pros and cons of each?

Law Enforcement

It is always important to keep your court ordered visitation schedule with you when you are picking up and dropping off your child.  If you have agreed to meet at a particular location for regular drop off and pick up, it is also very important to have that information in hand.  Say for example, you are supposed to meet your child's other parent at the Albertson's parking lot on Fairview.  You arrive on the 4th of July at the designated time and the parent fails to show up.  If you have your visitation schedule with you and you know where the other party is, you can call the police.  Once you have shown them your order and where you were supposed to meet, the police can intervene.  Of course, this is predicated on you knowing where the other party is.

Contempt

Contempt is a process where you go before the Court.  You show the Court that the other party is in violation of the court order and you ask the Judge to punish the other party for intentionally disregarding the order.  Contempt can carry some severe penalties which the Judge may or may not impose on the other party, such as jail time or a fine. The remedy of Contempt takes time because you need to motion the Court and come before the Judge to present evidence.

Pros and Cons

Obviously, involving the police can be a faster remedy.  It, however, isn't always possible, especially if you don't know where the other party or the child is.  You also may end up with an officer who is hesitant to help you enforce your order.  The option of Contempt is slower but it may have longer lasting effects.  Judges do not like it when people disregard their orders.  If a party upsets a Judge by disobeying their order, that party will know that the Judge won't put up with further shenanigans.

Hopefully, your 4th of July and all your holiday visitations will transpire smoothly and without incident.  If, however, you find yourself in need of a Boise Divorce Attorney to help you with your custody, visitation or modification issues, please give us a call, 208-472-2383.  You will be glad you did.

Boise Divorce Attorney (208) 472-2383 Custody Agreements

Parenting Plan and Custody Agreements
Boise Divorce Attorneys will tell you that most judges prefer that a divorcing couple come to an agreement as to what their custody arrangement will be, rather than making the decision for them.  Judges know that each couple knows their family dynamics best.  They know how their family works.  No two families are alike so there cannot simply be one parenting plan and one custody arrangement.  Custody isn't a one size fits all proposition.

How are Parenting Plans and Custody Agreements Decided Upon?
After filing for divorce, serving the complaint upon the other party and after the defendant's response is filed, one of the first things that divorce attorneys do is see what issues can be worked out.  If the parties already have in mind a custody arrangement that will work for them or is working for them, they can reduce that agreement to writing, establish temporary orders along those lines and eventually have the agreement signed and incorporated into the final divorce decree by the judge.

Unfortunately, in the real world it is not always that easy.  Often the emotions of divorce get in the way and the process is clouded by hurt feelings or feelings of mistrust or anger.  If the parties cannot agree as to how custody will be split or how they will parent during the interim, the judge in a divorce case will send them to mediation.  The aim of mediation is to help the parties work out a parenting arrangement that will work best for them.  The court has approved mediators from whom it will accept mediation agreements.  The parties will be asked to use their best effort to work out an agreement that will work for them.

What Happens When You Can't Agree?
If you make a good faith effort in mediation but cannot come to an agreement, the judge will make the decision for you.  The judge will look at the situation and use a set of statutory criteria to decide what is in the best interest of the child.  Once this is done, this will be your custody arrangement, whether you like it or not.  That is why it is critical to use your best effort to come up with an mutually acceptable agreement with the other parent.

Will the Judge Always Accept Your Parenting Agreement?

For the most part, if you come up with a mutually agreeable parenting arrangement, the judge will accept it and sign it, making it a part of the final decree.  There are, however, situations where a judge will absolutely not sign the agreement.  By statute, all custody arrangements must be in the best interest of the child.  If a judge looks at your agreement and determines that it does not fit the criteria, he or she can and will make you either voluntarily change the agreement, or will make the decision for you based upon the criteria that make up the best interest of the child. 

Perhaps the most frequent time this occurs is when you have extended absences away from each parent.  For example, judges frown on arrangements where a very young child lives for an entire year with one parent and then switches the next year to the other parent.  Part of being is in the best interest of child includes frequent and regular contact with both parents.

If you are seeking a divorce or need to speak to a Boise Divorce Attorney, please give us a call, (208) 472-2383, and see what we can do for you.

Boise Bankruptcy Attorneys

Ordinarily I write these bankruptcy blogs from the perspective of a bankruptcy attorney helping clients understand and file Chapter 7 or Chapter 13 bankruptcy.  Today, however, I would like to discuss a particular element for creditors.  Often, people will speak derogatorily about bankruptcy saying that it allows people to wrack up debt and then walk away scot-free.  As a Boise Bankruptcy Attorney, I do not hold that perspective.  I believe that bankruptcy is a valuable tool aimed at helping people get back on their feet and giving them a second chance.  There is one situation, however, that I find unacceptable for an individual filing bankruptcy and that is FRAUD.

Fraud
What is fraud?  Fraud is the intentional deception of another to make financial gain.  If a debtor files bankruptcy and is trying to get out of paying debt justly owed to a creditor and the debtor has committed fraud, can anything be done?

Absolutely! First, let's look at a situation where this might occur.  Say you are remodeling your home.  You hire a contractor who hires subcontractors to work on your house.  If the contractor knowingly submits bills for subcontractor work that has not been done, with the intent to get paid and to use those funds for their own benefit, that contractor has committed fraud.  Say that you discover his fraudulent activity and you file suit against him and win a judgment against him.  Say then, you try to execute on your judgment only to find out that he has filed for bankruptcy.

Ordinarily, a Chapter 7 Bankruptcy will discharge a debtors debt.  But what if fraud is involved?  Is the creditor barred from collecting on his judgment and is the debtor freed of the debt?  No.  But that is not automatic.  You must file an objection on the basis of fraud.  The bankruptcy court will look at your judgment and your claim of fraud and make a determination as to whether or not the judgment will be barred by bankruptcy or not discharged because of the fraud.

Collections
After the bankruptcy court determines that there was fraud and that your judgment won't be discharged, you can collect on the outstanding judgment.  You would proceed with collection efforts as if the bankruptcy were not there.  This might include having the sheriff attach property or by doing a garnishment against the debtor's wages.

If you are seeking a bankruptcy or are the victim of fraud and you need your judgment protected from discharge, please give us a call and see what we can do for you, 208-472-2383.  You will be glad you did.

Bankruptcy - Who Can File - Boise Bankruptcy Attorneys

As a Boise Bankruptcy Attorney, I often hear from people that they are confused about who and when you can file for bankruptcy.  Today, I will give a quick overview of the who and when of bankruptcy.  In addition, I often get questions about when it is advantageous to file for bankruptcy.  I will also address some examples of that today.

Who Can File For Bankruptcy?
Anyone who meets the requirements for the various forms of bankruptcy can file for the protection it provides.  This includes businesses.  While, technically, a business isn't a person and visa versa, the protection granted by the Federal Court extends to entities. 

Some examples of who can file for bankruptcy include and individual who meets a financial criteria test (Chapter 7), an individual who does not meet the financial test of bankruptcy but who needs to make a payment plan (Chapter 13) or a business which needs to restructure its debt payments (Chapter 11).


When Can You File For Bankruptcy?
In most cases, if you need the protection of bankruptcy it is there for you.  However, there are limits on how frequently you can file and which Chapter will apply to you.  For example, if you have filed for Chapter 7 within the past 8 years,  and received a discharge, you may not file for Chapter 7 again before that time frame has expired.  If, however, you find yourself in a financial situation where you can't pay your debts, you may qualify for a Chapter 13 after four years, even though you might meet the means test required for a Chapter 7.  Not to further complicate the issue, but there are more limits.  If you need to file for Chapter 7 after you have filed a Chapter 13, you need to wait six years.  In this situation, however, you may actually be able to get a complete discharge of unsecured debt under a Chapter 7 before the six year period if you have paid 70% of your secured debt.  In order to file a Chapter 13 bankruptcy a second time, you must wait two full years from the date of filing.

Mortgage Foreclosure and Asset Protection
The obvious reason for filing for bankruptcy is to discharge your debt or to get a repayment plan to restructure debt.

These are two situations where there can be a reason, other than financial protection, for filing bankruptcy.  If you are behind on your mortgage, filing a Chapter 13 bankruptcy can protect your home.  This allows you to pay off the arrerages over a period of time so that you are not foreclosed against.  Chapter 13 will allow you to make a payment plan for repayment for the mortgage debt as well as your other debts.

Another situation which can provide an important reason to file bankruptcy beyond a financial consideration, is the protection of assets.  By law certain pieces of property are exempt from being used to cover your debt.  If you have an asset associated with your financial livelihood, for example, it doesn't make any sense for a court to take that asset away.  If you have debt associated with that asset you can file for Chapter 13 and make payments on the back debt, thereby protecting your asset.

If you need to speak to a Boise Bankruptcy please give us a call, 208-472-2383.  You will be glad.

Boise DUI Lawyers - Idaho Criminal Defense Attorneys - (208) 472-2383

Felony DUI
As a Boise DUI Lawyer, I see a lot of drunk driving cases.  Often these cases are what a criminal defense attorney might call routine.  Although DUI is not routine or run of the mill, misdemeanor driving under the influence follows a typical pattern.  This is not the case with Felony DUI.

Most often a person will end up with misdemeanor DUI and they will learn their lesson.  They know that they must be on guard and not drive under the influence of alcohol again, or else.  This isn't necessarily the case with felony DUI.  It is not the case that they just won't learn their lesson, it is more likely the case that there is an underlying situation causing a problem which is manifesting itself in reckless behavior.

Repeat DUI
When a person gets three or more DUI charges within 10 years it is a felony.  The lasted news about the 52 year old Boise resident who has received 6 DUI charges since 1994 is an example of a situation out of hand.

How does the court deal with offenders such as this?  To prevent recidivism (repeated criminal offenses), the law creates a graduated fine, jail time and suspended driving privileges deterrent.  Often, in first time offenses or even second time, the full extent of available sentence won't be imposed.  It is often "suspended" or a maximum fine is not imposed.  The more time a person commits a crime, especially the same type, the more likely they will be to get the full force of the sentence as well as anything that has been suspended previously if they are still on probation.

Jail, Fine and DUI
Does the graduated method of penalty deter repeated crime?  When there is an underlying problem that is causing the repeated DUI, jail time, fines and license suspension cannot possibly prevent further problems.  The underlying issue must be resolved.  The law does provide for optional Drug or Mental Health Court, but these are not automatic and you do not have a "right" to be admitted into these.  Perhaps a more involved prevention would help.  If a second time DUI sentence carried with it the mandatory requirement for a drug or mental health counseling, perhaps it would go a long way in preventing felony DUI by addressing the underlying problem before it results in recidivism. 

If you have been charged with a DUI or other crime in Idaho and need to speak to a Boise DUI Attorney, please give us a call, 208-472-2383, and see what we can do for you.

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