Can I call my child as a witness in court to say where she would like to live?

I’m asked many different questions as a Utah divorce lawyer. This one is not unique. You may want to this about this question again. Do you really want your child to testify as a witness? Do you really want your child to be placed in the position of being made to choose which parent he/she prefers or “loves more”? That kind of thing could really scar some (I emphasize some, not all) children emotionally.

Let’s assume for the sake of this response, however, that you have legitimate and compelling reasons for the child to testify on the subject of the child custody and/or parent-time orders. By way of historical note, few people know that before 1969, the Utah Code provided that children ten years of age “shall have the privilege of selecting the parent to which they will attach themselves.” Not anymore.

Now the Utah Code provisions regarding child testimony on the subject of custody and parent-time (visitation) are found in Utah Code § 30–3–10(1) and read, in pertinent part, as follows:

• (e) The court may inquire of a child and take into consideration the child’s desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the child’s custody or parent-time otherwise. The desires of a child 14 years of age or older shall be given added weight, but is not the single controlling factor.
• (f) If an interview with a child is conducted by the court pursuant to Subsection (1)(e), the interview shall be conducted by the judge in camera. The prior consent of the parties may be obtained but is not necessary if the court finds that an interview with a child is the only method to ascertain the child’s desires regarding custody.

Now you may ask (and if you weren’t thinking of asking, you should), “So how frequently does a Utah court ‘find that an interview with a child is the only method to ascertain the child’s desires regarding custody’?”

The answer is: almost never, and for the reason I stated at the beginning of my response to your question, i.e., the vast majority of judges and commissioners in Utah believe that a child should never be questioned on the subject of his/her desires regarding future custody or parent-time schedules because of concern that placing the child in the position of having to choose could be emotionally agonizing.

While the desire to avoid traumatizing a child emotionally is valid, it is often abused by judges as a convenient excuse not to question children under any circumstances, no matter how compelling (and thus saves time and allows the court greater discretion in deciding the issue, since the child’s testimony never gets heard).

Another valid concern, but one that is also often abused as a convenient excuse for judicial sloth, is whether a child’s testimony is all that credible, given that a child may have been unduly influenced by a parent to say what the parent wants the child to say, rather than what the child honestly observed, feels and desires.

Some judges will dodge a child interview by claiming to be “unqualified” to question a child on the subject of custody and parent-time. To that lame argument I point out that the legislature has clearly expressly deemed the judge qualified to question a child by authorizing the judge by statute to interview the child. Thus, if a judge still feels unqualified, that judge either needs to read up or get trained up to the point of finally feeling qualified or resign from the job of being a judge.

Some judges claim that they can avoid questioning children, yet still solicit their desires by having someone else (such as an attorney appointed for the child—who is called a “guardian ad litem”—or having a social worker or psychologist) interview them and then report that to to judge. But that’s silly. The interview still takes place. The questions still get asked and answered, but they aren’t asked by or heard by the judge directly. There’s a reason we have witnesses testify in the presence of the judge: so that the judge can hear the testimony first-hand and without filtration or bias from a second-hand source, so that the judge can truly ascertain the witness’ credibility. When all a judge does is get testimony through a “child whisperer,” the integrity of the fact-finding process is needlessly undermined.

Additionally, the guardian ad litem and/or psychologist isn’t an expense the court bears; one or both parents have to pay for these people’s “services,” which ends up costing the parents a lot of money, wasting a lot of time, and needlessly raising hearsay concerns. I have no problem with an expert supplementing the evidence when warranted, but at bottom, wholesale delegation of the interview responsibility is passing the buck, pure and simple.

Personally, I don’t see why the overwhelming majority of Utah district court judges are so unwilling to question children on the record on the subject of custody and parent-time. First, children testify in all kinds of court settings without wrecking their lives. Second, it’s not as though the only way to solicit the children’s testimony is by subjecting them to the same kinds of brutal interrogation techniques used with hardened criminals or spies. It’s the children who will be affected most by the child custody and parent-time orders, so I cannot see how an intellectually honest judge could claim that a child’s observations, experiences, feelings, opinions, and desires on the subject are not key to reaching a custody and parent-time order that is in that child’s best interest. Where there’s a will, there’s a way. Fortunately, commissioners and judges in Utah appear to me to be coming around to my way of thinking, albeit slowly and reluctantly.

So if you were hoping to have the judge interview the child to inform the judge of the child’s custody and parent-time preferences, I wouldn’t count on it in Salt Lake, Provo, West Jordan, or Sandy Utah.

Free Consultation with Custody and 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.

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

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From http://www.ascentlawfirm.com/can-i-call-my-child-as-a-witness-in-court-to-say-where-she-would-like-to-live/

source https://familylawattorneyut.wordpress.com/2018/05/04/can-i-call-my-child-as-a-witness-in-court-to-say-where-she-would-like-to-live/

How to get a good divorce settlement if I can’t afford a lawyer

I have a steady job and am paid well, but I simply don’t have money for the retainer and my ex’s father is, literally, a millionaire.

There are a few options.

In Utah, you can file a motion to get you temporary alimony.

First, see Utah Code § 30-3-3. Award of costs, attorney and witness fees—Temporary alimony.

(1) In any action filed under Title 30, Chapter 3, Divorce, Chapter 4, Separate Maintenance, or Title 78B, Chapter 7, Part 1, Cohabitant Abuse Act, and in any action to establish an order of custody, parent-time, child support, alimony, or division of property in a domestic case, the court may order a party to pay the costs, attorney fees, and witness fees, including expert witness fees, of the other party to enable the other party to prosecute or defend the action. The order may include provision for costs of the action.

(emphasis added)

(2) In any action to enforce an order of custody, parent-time, child support, alimony, or division of property in a domestic case, the court may award costs and attorney fees upon determining that the party substantially prevailed upon the claim or defense. The court, in its discretion, may award no fees or limited fees against a party if the court finds the party is impecunious or enters in the record the reason for not awarding fees.

(3) In any action listed in Subsection (1), the court may order a party to provide money, during the pendency of the action, for the separate support and maintenance of the other party and of any children in the custody of the other party.

(4) Orders entered under this section prior to entry of the final order or judgment may be amended during the course of the action or in the final order or judgment.

The following principles governing an award of attorney’s fees under Utah Code § 30-3-3 is taken from the Utah Supreme Court case of Dahl v. Dahl, 345 P.3d 566 (Utah 2015):

In Utah, attorney fees are awardable only if authorized by statute or by contract.” Dixie State Bank v. Bracken, 764 P.2d 985, 988 (Utah 1988).

Section 30-3-3(1) of the Utah Code authorizes courts to award attorney fees and costs in divorce cases if doing so would “enable the other party to prosecute or defend the action.” “Such an award must be based on evidence of the receiving spouse’s financial need, the payor spouse’s ability to pay, and the reasonableness of the requested fees.” Levin v. Carlton, 2009 UT App 170, ¶ 27, 213 P.3d 884.

The party requesting an award of fees has the burden of providing such evidence. Griffith v. Griffith, 959 P.2d 1015, 1020-21 (Utah Ct.App.1998).

The decision of whether to award attorney fees pursuant to section 30-3-3 of the Utah Code rests in the sound discretion of the district court.

When determining the financial need of the requesting spouse, we “generally look to the requesting spouse’s income, including alimony received as the result of a divorce decree; the property received via the property distribution award; and his or her expenses.” Kimball v. Kimball, 217 P.3d 733, ¶ 46 (Utah Ct.App. 2009)

When evaluating the reasonableness of a request for attorney fees pursuant to section 30–3–3, courts look to a variety of factors.

Reasonable attorney fees are not measured by what an attorney actually bills, nor is the number of hours spent on the case final in computing fees…. A court may consider, among other factors, the difficulty of the litigation, the efficiency of the attorneys in presenting the case, the reasonableness of the number of hours spent on the case, the fee customarily charged in the locality for similar services, the amount involved in the case and the result attained, and the expertise and experience of the attorneys involved.

Another option is to talk to your family and get assistance.  Talk to your mom, your dad, your brothers, sisters, aunts, uncles, priests, rabbis, ministers, bishops, friends, neighbors, etc.  Those who love you usually can and will help you.

Another option is to contact Utah Legal Aid.  They assist those who cannot afford legal services and have no other options.  Its my understanding that it is needs based and there is a waiting period.  Contact them directly to get started.  Their number is: 801-328-8991.

 

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 fight for you.

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

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source https://familylawattorneyut.wordpress.com/2018/05/03/how-to-get-a-good-divorce-settlement-if-i-cant-afford-a-lawyer/

Household Debt Near Great Recession Level

Although bankruptcy filings have been trending downward for years, household debt is expected to hit a new record in 2017.

It may seem like a big number, but fewer than 800,000 people filed for bankruptcy in the U.S. last year. Just six years ago, that amount was double.

Will household debt start to catch up with us? According to the Federal Reserve — maybe.

Household debt climbed to $12.58 trillion in 2016, which nearly broke the 2008 record (see: timing with the Great Recession). It could even reach that high, $12.68 trillion, sometime this year.

Banks are extending more debt to households, but fewer people are delinquent on their debt. However, all that debt will have to go somewhere eventually. Could it result in an uptick in bankruptcies in a few years?

What is household debt?

Household debt includes more than just your house. The categories of debt, as measured by a Federal Reserve Bank of New York report, include housing debt, like mortgages, along with non-housing debt: credit cards, student loans, and auto loans. Each saw an increase in 2016, at a total of $460 billion more household debt — the largest increase in a decade.

The boost is in large part because of stronger new extensions of credit, the Federal Reserve says.

Let’s break down each category, and where we’ve seen increases.

Mortgage Debt in Utah

Mortgage balances, at $8.48 trillion, make up 67% of household debt. This is an increase of $130 billion from the third quarter of 2016. Balances on home equity lines of credit, now at $473 billion, were roughly flat. Mortgage originations, measured as appearances of new mortgage balances on consumer credit reports, including refinanced mortgages, were at $617 billion — the highest level of originations since the Great Recession began.

The median credit score for mortgage originations increased to 763, with a credit score of 700 and above generally considered good or very good by measuring agencies. Credit scores are used by lenders to determine how likely you will be able to repay your debt, and thus make their decision on whether or not to offer you a loan and what your interest rate or down payment may be. About 58% of new mortgages went to borrowers with credit scores over 760 last year, an increase of 4 percentage points over 2015.

The percentage of people buying homes with low credit scores, peaking in 2009, has been on the decline in recent years as the mortgage industry is continuing to recover. Consumers, it seems, have been buckling down and being more responsible with their spending — mortgage charge-off rates are within the range observed prior to the recession.

However, about 79,000 people had a new foreclosure notation on their credit reports sometime in the fourth quarter of 2016.

Credit cards

Credit card debt may seem like the most popular to people who have a lot of it and don’t own a home, but it accounts for the least amount of household debt out of all categories — at just 6%. However, credit card debt increased by $32 billion last year, to amount to a total of $779 billion. The aggregate credit card limit also increased for the 16th consecutive quarter, climbing 2.3%.

Utah Student Loan Debt

Student loans account for 10% of household debt. Debt balances rose by $31 billion in the fourth quarter to a total of $1.31 trillion. Most of us know the pain of student loan debt all too well, and unfortunately, if people ever get in trouble with their debt, they’ll most likely still be on the hook for their student loans. It’s really difficult to discharge student loans in a bankruptcy — next to impossible, actually.

Auto loans

Finally, auto loans account for 9% of household debt. New auto loan originations have climbed to a record high, increasing by $22 billion. There were $142 billion in auto loan originations in the fourth quarter, in turn making 2016 the highest auto loan origination year in nearly 20 years.

Like people taking out their first mortgage or refinancing one, auto loan borrowers had an increased median credit score last year in the “good” range — 700. Although they didn’t see as much of an increase as home buyers, 32% of people getting an auto loan in the fourth quarter of 2016 had a credit score of over 760, compared to the previous three quarters’ 29% with that high of a score.

How delinquent are Americans on debt?

According to the Federal Reserve report, while more Americans are racking up household debt, it seems that they’re learning how to pay it back — or at least deal with it for now. Fewer delinquencies were reported at the end of 2016 than there were in 2008, the last time household debt was so high. Only 4.8% of debts were regarded as delinquent or late in payment at the end of last year, while the third quarter of 2008 showed 8.5% delinquencies.

Delinquency rates are pretty stable, too. The most-improved delinquencies are the 30-days-late balances, while the “severely derogatory” ones — debt that’s at least 90 days late — saw a small uptick in the last quarter of 2016. Unfortunately, of the $607 billion of debt that is delinquent, $412 billion is seriously delinquent.

Additionally, 204,000 consumers had a bankruptcy notation added to their credit reports in the final quarter of 2016, which was about 4% fewer than at the same time the previous year — and also a new series low.

Other debt trends for 2018

In addition to major increases in household debt, the restructuring industry also is expecting changes for 2018. The restructuring industry includes law firms, investment banks, lenders, and more who deal with companies who are restructuring their debt through bankruptcy or other means.

While consumer bankruptcies are down, commercial bankruptcies are up. According to the American Bankruptcy Institute, total filings increased by 26% in 2016 over the previous year — the first rise since 2010. Industry experts thus are expecting more companies in debt to attempt to restructure this year. That includes a lot of retailers, many of which filed bankruptcy in 2016 (American Apparel, Sports Authority, Wet Seal, and Hancock Fabrics, to name a few).

Free Consultation with a Bankruptcy Attorney

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.

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

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From http://www.ascentlawfirm.com/household-debt-near-great-recession-level/

source https://familylawattorneyut.wordpress.com/2018/05/02/household-debt-near-great-recession-level/

Civil Lawyer

The Law in Utah is split intо the two broad аrеаѕ оf civil law and criminal law. A lаwуеr working in the criminal аrеа will defend or prosecute individuals who have broken ѕоmе criminal lаw. A civil lawyer will represent clients who mау have a dispute with someone else оvеr ѕоmе matter that iѕ nоt соvеrеd by criminal lаw.

Thе kind оf thing thаt сivil lаwуеr will dеаl with аrе disputes bеtwееn twо раrtiеѕ thаt mау inсludе соntrасt diѕрutеѕ, реrѕоnаl injuriеѕ or dаmаgеѕ tо property. A civil lаwуеr will represent bоth ѕidеѕ in a diѕрutе. Thе реrѕоn whо iѕ suing is known аѕ the рlаintiff аnd the реrѕоn being ѕuеd iѕ саllеd аѕ the dеfеndаnt.

Thе аrеаѕ thаt a civil lаwуеr will dеаl with include: Civil lаw, buѕinеѕѕ lаw, ѕlаndеr, реrѕоnаl injurу сlаimѕ, nеgligеnсе аnd libеl. Thе civil lawyer jоb description will vary frоm firm tо firm but thе basics will rеmаin thе ѕаmе.

A lawyer who ѕресiаlizеѕ in сivil lаw iѕ knоwn аѕ a сivil lаwуеr. Civil law hаѕ many fields inсluding business laws, corporate laws, intеllесtuаl property lаwѕ, fаmilу lаwѕ, personal injurу laws, probate lаwѕ, rеаl estate laws, tax lаwѕ, еtс. Civil law iѕ a brаnсh of lаw dеаling with diѕрutеѕ bеtwееn individuаlѕ and/or оrgаnizаtiоnѕ, in whiсh соmреnѕаtiоn may bе аwаrdеd tо the viсtim. A сivil lаwуеr not оnlу represents thе сliеnt in a lеgаl proceeding but аlѕо рrоvidеѕ legal аdviсе tо the client in сivil trаnѕасtiоnѕ.

Civil law еnсоmраѕѕеѕ аll lаw thаt is nоt сriminаl law. Civil lаw seeks tо resolve nоn-сriminаl diѕрutеѕ such as diѕаgrееmеntѕ over thе mеаning оf contracts, property оwnеrѕhiр, divоrсе, сhild сuѕtоdу, and dаmаgеѕ fоr реrѕоnаl аnd property dаmаgе. Civil lawyers hаndlе lаwѕuitѕ that invоlvе individuals, buѕinеѕѕеѕ, and еvеn the gоvеrnmеnt.

Civil lawyers will gеnеrаllу choose one or mоrе аrеаѕ of lаw to ѕресiаlizе in. If уоu need assistance with tаx lаwѕ, уоu should gо to a сivil lаwуеr whо specializes in tаx lаwѕ. If уоu have bееn injurеd in аn accident and уоu wаnt tо file a law ѕuit ѕееking damages, уоu will nееd thе services оf a civil lаwуеr ѕресiаlizing in реrѕоnаl injurу lаwѕuitѕ. If уоu аrе filing fоr divоrсе or seeking сuѕtоdу оf your child, a civil lawyer ѕресiаlizing in fаmilу lаw will be аblе to hеlр уоu out.

A lаwуеr саn аlѕо hеlр уоu if уоu аrе running a buѕinеѕѕ bу giving уоu timely аdviсе thаt can ѕаvе you frоm соѕtlу сivil law litigation. A civil lаwуеr ѕресiаlizing in business laws саn advise уоu оn the rеgulаtiоnѕ your business nееdѕ tо comply аnd thе licenses rеԛuirеd bу your business. He can even help you obtain the liсеnѕеѕ. Lаwѕ rеgulаting the functioning оf соrроrаtiоnѕ аrе соmрlеx. Thеrе аrе сivil lаwуеrѕ whо ѕресiаlizе in соrроrаtе laws. In a rеаl estate trаnѕасtiоn, a lаwуеr ѕресiаlizing in real estate lаwѕ can make ѕurе thаt the transaction is being conducted in the proper way, thе necessary dосumеntѕ аrе рrореrlу executed аnd the ѕаlе рrосееdѕ рrореrlу раid out аnd ассоuntеd fоr at сlоѕing.

Lаwуеrѕ can bе bаѕiсаllу ѕераrаtеd intо two саtеgоriеѕ. Civil and сriminаl. Civil lawyers gеnеrаllу dеаl with iѕѕuеѕ such аѕ adoption аnd divоrсе, domestic iѕѕuеѕ, and сriminаl lаwуеrѕ dеаl with personal injury, crime, and соrроrаtе lаw. Althоugh hеrе уоu will find a list of the mаin tуреѕ оf lawyers thаt are available, bе aware that thеrе аrе many other ѕmаllеr specialties within each ѕресiаlizаtiоn.

• Divorce Lаwуеrѕ ѕресiаlizе in divorce аnd annulment. Thеу саn provide mаnу ѕеrviсеѕ during thеѕе hard timеѕ. There are mаnу iѕѕuеѕ that уоu mау not еvеn knоw about thаt a divorce lаwуеr can hеlр you with. Thеѕе include, mеdiаtiоn, finаnсiаl planning, аvоiding gоing to соurt, visitation and сuѕtоdу.

• Civil Lаwуеrѕ dеаl with individuаlѕ аnd buѕinеѕѕеѕ, оrgаnizаtiоnѕ bеtwееn individuals. For example thеу mау hаndlе marriage аnd divorce, рrореrtу diѕрutеѕ, malpractice and wrоngful dеаth.

• Bаnkruрtсу Lаwуеrѕ help individuаlѕ аnd buѕinеѕѕеѕ filе fоr bаnkruрtсу and wоrk tо help thеm gеt thе best роѕѕiblе terms fоr their ѕituаtiоn. Thеу maybe bе аblе tо hеlр thеm kеер thеir homes and cars, or аvоid personal itеmѕ being rероѕѕеѕѕеd.

• Family lаwуеrѕ соvеr ԛuitе a wide range of ѕеrviсеѕ. All iѕѕuеѕ thаt rеlаtе to fаmiliеѕ. Thеrе are mаnу fаmilу rеlаtеd рrоblеmѕ thаt can occur thаt a family lаwуеr саn hеlр уоu with. Domestic violence, сhild viѕitаtiоn rightѕ, раtеrnitу, divоrсе аnd аdорtiоn.

• Criminаl Lаwуеrѕ work with сriminаl offenses. Oftеn people nееd someone to dеfеnd them, аѕ thеу have been charged, thiѕ may bе in or оut of thе соurt, it simply dереndѕ on thе crime. The range оf crimes thаt сriminаl lawyers dеfеnd iѕ large, ranging frоm murder tо ѕеxuаl аѕѕаult tо frаud.

• Accident Lаwуеrѕ hеlр реорlе thаt are viсtimѕ оf injurу or ассidеntѕ in оrdеr tо get compensation.

• Contract Lаwуеrѕ hеlр people who (1) need a contract written; (2) need to understand what a contract means (interpretation); (3) need to break a contract (also call breach a contract; (4) need to enforce a contract.

• Real Estate Lawyer help clients fixing title issues to property, suing to enforce property rights; transferring property; and protecting their property.

• Probate Lawyers help people with estate planning (wills, trusts, powers of attorney, health care directives) and also handling things after someone passes away, including probating the estate when necessary.

• Tax Lаwуеrѕ hеlр реорlе dо thеir tax rеturnѕ аnd bаѕiсаllу dеаl with аll issues of tаx.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

Ascent Law LLC

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From http://www.ascentlawfirm.com/civil-lawyer/

source https://familylawattorneyut.wordpress.com/2018/05/01/civil-lawyer/

Can Bankruptcy Help Me?

Good question, with no easy pre-packaged answer. If you’re struggling with debt and looking for a way out, it’s in your best interest to at least talk to a professional. There are simply too many variables involved with the “can bankruptcy help?” question to get competent advice from the internet. With sites like this, you have the opportunity to begin your research and learn quite a lot, but ultimately, you’ll need a lawyer familiar with the laws of your state and the particularities of your local system.

Filing For Bankruptcy is a Major Decision. Necessary For Some, Unnecessary For Others…

You don’t just throw a bankruptcy in your shopping cart and head for the check out, it’s a major life decision that should not be entered into lightly. In some cases, bankruptcy can really help. Some families who are avoiding filing for bankruptcy shouldn’t be, they could use the help. In other situations, filing for bankruptcy would be a big mistake. One of the themes we try to emphasize on this forum is that no two bankruptcy cases are identical. If I’ve said it once, I’ve said it a thousand times, filing for bankruptcy is much more than just filling out some forms. Debt relief at the federal level is powerful, complicated and unforgiving. It can offer tremendous relief when done the right way (see: Filing Bankruptcy Without a Lawyer? Know The Risks). You pay a bankruptcy attorney to weigh all of the variables and to guide you through the process if you need it, or point you in another direction if you don’t. But I can hear the readers researching bankruptcy, at home, late at night, saying: “OK, we get that no two bankruptcy filings are the same, and that we need good representation, but can you answer the question please! Will bankruptcy help me?” Again, ultimately a question for a lawyer, not Google, but to begin your research, let’s roll up our sleeves and delve into some common debt scenarios and break it down.

Can Bankruptcy Help With Credit Card Debt?

A softball pitch to start. High interest credit card debt is one of the most common reasons folks file for bankruptcy. Bankruptcy can be a big help with your credit card bills. How? Assuming they were incurred in good faith, the bankruptcy discharge eliminates unsecured debts such as credit cards and medical bills. After you file for bankruptcy, your credit report should reflect zero balances on credit cards and lenders are permanently prevented from trying to collect. If they try, they can get in hot water with the bankruptcy judge.

Will Bankruptcy Help With Collection Calls?

Yes, we can check that box as well. Take some time to read up on the automatic stay, it’s a powerful injunction that stops all collection activity in its tracks the minute a bankruptcy case is filed. Once you seek bankruptcy protection, your creditors are prohibited from calling you. Even “friends” checking in on debts need to respect the bubble.

Does Bankruptcy Stop a Foreclosure?

Not only does the automatic stay stop creditor phone calls, it stops all collection activity including lawsuits, garnishment and, yes, foreclosure. Bankruptcy and foreclosure is a complicated subject, but bankruptcy can help at least delay a foreclosure sale of your home.

Chapter 7 bankruptcy is a faster process than Chapter 13 bankruptcy. Most Chapter 7 cases are open and shut within a six-month window. When you file bankruptcy (7 or 13), a court-ordered injunction, known as the automatic stay, prevents the bank from foreclosing on your home. This is true even if you file bankruptcy the day before the foreclosure sale is set to take place. That’s the good news, now on to the not so good news. Even after a bankruptcy case has commenced, and the almighty stay is in place, lenders can file what is known as a motion for relief from stay. The motion for relief allows them to continue with the foreclosure process even while your bankruptcy case is live.

For a detailed breakdown of how bankruptcy can help stop foreclosure, see this post: Bankruptcy and Foreclosure: What You Need to Know.

Will Bankruptcy Help My Spouse if I Don’t File?

Potentially, yes it can. However the answer will hinge on whether your debts were incurred jointly or separately. Bankruptcy only eliminates the personal liability of the individual that actually files. If you and your spouse have incurred joint debt, she files and you don’t, you’ll still be on the hook for the debt. Conversely, if your spouse has incurred quite a bit of debt in her name and you haven’t, bankruptcy can help get you out of debt while preserving your credit. Check out this post for more information.

Can Bankruptcy Help With IRS and State Taxes?

Yes, but only in limited circumstances. If your taxes have been due for at least three years and your returns were filed more than two years ago, your taxes are likely dischargeable in bankruptcy. If you don’t meet this criteria, you’re stuck with your tax debts even if you file bankruptcy. Keep in mind, your taxes are due in April of the next tax year. 2012 taxes aren’t technically due until April of 2013. The three year time period starts running from the due date. assuming no extensions have been filed, your 2012 taxes become dischargeable in April of 2016. The IRS wants to make sure they have a number of years to take a good crack at you before you’re allowed to wipe out the tax debts in bankruptcy. For more information, see this post: Tax Debts and Bankruptcy.

Will Bankruptcy Help With My Mortgage?

Yes and No. On the one hand, filing for chapter 13 bankruptcy can help you save a home from foreclosure by forcing your lender to take past due mortgage payments in small increments over a 3-5 year period rather than forcing you to pay back what you owe in a lump sum right away. The concept is explained well in this post: Can Bankruptcy Save My Home?

The all too common scenario unfolds a lot like this: a consumer falls behind on their mortgage and starts to get calls and letters from their lender. They then try to negotiate a modification or payment plan to get caught up. Unfortunately, in most cases the mortgage modification attempt fails after many months of haggling with “loss mitigation” bureaucrats or the bank demanding the arrearages in one lump sum. The consumer can’t afford to come current on their entire past due balance and eventually they lose their home to foreclosure. Chapter 13 bankruptcy changes the playing field by forcing lenders to accept past due mortgage payments in small increments over a period of 3-5 years which gives many families a realistic chance of getting caught up and saving their home. The past due mortgage payments are then added to the existing mortgage payment going forward.

Although the ability to catch up on past due mortgage payments can be a big help for many families who are struggling to stay in their homes, it is important to remember that filing for bankruptcy doesn’t give you a free house. You’ll always need to maintain normal monthly mortgage payments if you wish to keep your home. Failure to pay the mortgage on time will almost always result in the lender seeking permission to foreclose. If, on the other hand, you’re one of the millions of Americans who find themselves underwater on their home values, and your mortgage has become a financial albatross that you can no longer afford to carry, filing for bankruptcy gives you the right to surrender the property and walk away with no liability for a deficiency judgment.

Can Bankruptcy Help With My Mortgage Modification?

Well, maybe not in exactly the way you might be envisioning. Your bankruptcy judge won’t get on the phone and take Bank of America to task for giving you the runaround for a year or more. However, the bankruptcy laws do allow junior liens to be stripped from your primary residence in a Chapter 13 bankruptcy. What does this mean? First off, the rule only applies to your primary residence, investment property need not apply. If you find yourself owing more than your home is worth based on the balance of your first mortgage, the second and third mortgages can actually be stripped or removed from your house. You’ll need a current appraisal to prove property value. Once this has been accomplished, your bankruptcy lawyer will file a lawsuit in the bankruptcy court seeking to have the liens removed. If the appraisal is credible, it is unlikely that the mortgage company will object and you’ll be left with a reduced housing payment.

Can Bankruptcy Help With My Car Payments?

Another yes. The same principle applies in the car context as it does in the mortgage context. First, you have the option of surrendering a car you can no longer afford and walking away. This is true regardless of whether you are currently leasing or financed the purchase of the car. If you wish to keep the car and lower payments, filing for Chapter 13 bankruptcy can do that as well. Just as second and third mortgage liens can be stripped from your home, the balance of a car loan can be reduced or “crammed down” to match the current market value of your car. In the cram down scenario, there is no requirement that there be a junior lien before your primary loan can be chopped, however, loans made within 910 days of filing are not eligible for cram down. The cram down option is a powerful tool for many consumers because, as we all know, the value of a car starts to go down the minute you drive it off the lot.

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. We can help you. Come in or call in for your free consultation.

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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Is a Foreclosure Better or a Short Sale?

As Utah Real Estate Lawyer, we get a lot of calls from clients who tell us that their real estate agent has recommended a short sale as an alternative to foreclosure.  The selling point is that you will avoid a foreclosure on your credit report.  Homeowners think this is a great option, but, while it sounds great, the reality isn’t as wonderful.  A short sale can lead to a number of pitfalls, short sales are not necessarily better than the dreaded foreclosure. Some common short sale traps are outlined below.

Short Sales Cost Time and Money

(1) You don’t receive any money from a short sale, yet you have to keep your home in sale ready condition: in a short sale, your lenders are agreeing to take less than what is owed.  This means that there is no equity in the home for you.  When the sale is closed, you will receive no income whatsoever.  Your real estate agent, in an effort to get the house sold, will probably ask you to spend some time and money throwing a fresh coat of paint on the walls, repair some items that are damaged, in one instance, a client of mine was asked to install a new furnace before the sale.   These are all costs that you will not recover from the sale of the home.

You Might Still Owe the Bank After a Short Sale!

(2) You may still be obligated on the debt: when the lender agrees to a short sale, the lender is only agreeing to ‘release’ their lien on the property for less than what they are owed.  It is very likely that the lender will ask you, the seller, to sign an unsecured note for the difference owed between what was received in the short sale v. what the value of the original promissory note was.  This can leave you without a home and owing thousands of dollars to the mortgage lenders!  This is particularly egregious because in many states, the first mortgage is considered to be a non-recourse mortgage.  This means that when the home is foreclosed on, the senior mortgage lender does not have the right to come after the homeowner for any deficiency balance.  This is the case in Washington State.  Second mortgages do have a right to sue for any deficiency they may have in a foreclosure in Washington State.  However, if you do a short sale, the mortgage company can essentially contract around this ‘non-recourse’ provision and make you liable for the money they didn’t recover from the sale.  This is a terrible position to be in!

Short Sales Bring With Them Tax Liability for Debt Forgiveness

(3) You may owe taxes on the amount of forgiven debt from the short sale: although there is some recent federal law that may remove your tax obligations from a short sale, you should be cautious that the amount of the forgiven loan is not reported by your mortgage company as income to you.  This would take place in the form of a 1099 tax form and you could be liable for taxes after the home has sold at short sale.  Consult with a tax attorney in your jurisdiction to learn more about this.

Short Sales are Only Slightly Better on Your Credit than Foreclosure

(4) On your credit report, a short sale doesn’t look much better than a foreclosure.  Both are big marks against you in the credit world.  While a foreclosure looks slightly worse, with the time and effort you have to put in to keep you home in sale ready condition, the potential pitfalls of owing the balance of the mortgage anyway after the short sale, as well as the potential tax consequences, it might be worth it to simply let the home go into foreclosure and walk away.  I spend a lot of time counseling debtors away from short sales.  In the final analysis, they are the ones doing all the work and getting none of the benefit.  It is easier to simply let the home go into foreclosure, file bankruptcy to deal with the debt and start over again from scratch.  When your back is against the wall, sometimes you have to be able to see the forest through the trees. A short sale is not always what you real estate agent advertises it to be.

Free Initial Consultation with a Real Estate Lawyer

When you are faced with foreclosure, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

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4.9 stars – based on 67 reviews

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Laws Businesses Need to Know

Employment contracts provide crucial structure for businesses and their employees. Before accepting an employment agreement, it’s important for employees to understand their rights. It is equally important for businesses to be well-versed in current employment legislation, in order to avoid costly and stressful legal disputes down the line.

Here is an overview of three crucial employment laws that every individual and business should understand.

EMPLOYEE RETIREMENT INCOME SECURITY ACT (ERISA)

As evidenced by the fallout of the 2008 financial crisis, it is critical that workers’ hard-earned benefits are properly invested and adequately protected.

ERISA is a set of legislative measures that applies to private employers, and covers pension plans as well as healthcare benefits. Under ERISA, employers are required to adhere to several standards, including:

• Providing employees with their benefit plan information
• Creating a reporting and appeals process for employee grievances and appeals related to benefits
• Complying with HIPAA, which prohibits discrimination in the selection and administration of healthcare plans

For employees, it’s critical to understand the differences between the pension plans that your employer offers. Not all plans are the same, and the plan you accept can play a major role in your retirement security.

The two primary types of pension plans are defined-benefit and defined-contribution. Defined-benefit plans guarantee that employees will receive a specific amount of pension funds when they retire.

Since paying into your pension fund entails specific investments, however, defined-contribution plans can vary based on how the investment itself performs.

In cases where employers offer defined-contribution plans, exercise special care in selecting your investment portfolio.

FAIR LABOR STANDARDS ACT (FLSA)

Private employers have some flexibility in setting wages, but there are certain parameters that have to be followed. The FLSA determines the national minimum wage, with a variety of adjustments based on the industry and job function in question.

One of the legal challenges with the FLSA is that, as a federal law, the minimum wage it sets may differ from state laws. In those cases, employees are entitled to earn the higher minimum wage.

For example, the federal minimum wage is currently $7.25 per hour. If you live in New York State, however, the state minimum is $9 per hour for most industries. By 2018, the state minimum wage will be $15.

That means that private employers in applicable industries will have to pay a minimum of $15 per hour, even if the federal minimum wage remains at $7.25 per hour.

The FLSA also covers overtime pay, a critical issue that many employers unfortunately overlook in order to cut costs. Overtime regulations apply to all “covered nonexempt employees”; exemption is determined by several factors including:

• The industry
• The size and revenue of the company
• The employee’s income level
• The nature of the employee’s job duties
• Whether the employee is paid a set salary or an hourly wage

The FLSA requires that any nonexempt employee who works over 40 hours each week is paid at least their usual wage plus one half of that rate (commonly referred to as “time-and-a-half.”)

Remember also that when calculating eligibility for overtime pay, your employer is not allowed to average time worked over a two-week pay cycle. The rules apply to each individual workweek, regardless of when during the workweek those hours occurred.

WORKERS’ COMPENSATION

Workers’ Compensation laws differ in each state, but they are based on the same general principles nationwide. This type of legislation protects employees in the event that they because injured or ill at their place of employment, due to the functions of their job.

Businesses who meet certain criteria are therefore required to pay into workers’ compensation insurance. Employees do not have to pay any contribution to this insurance and should never be asked to do so. Workers compensation coverage reduces legal risk and liability for employers, so paying into it can provide significant protective benefits.

In most cases, workers compensation coverage does not cover situations for an employee intentionally became injured on the job or engaged in negligent behavior such as substance abuse, which led to an on-site injury.

Another standard exception is when an employer’s egregious negligence has led to significant harm to the employee. For example, if a business knowingly exposes its employees to illegal toxic chemicals, employees who develop illnesses as a result can still reasonably pursue a lawsuit.

Businesses and employees should always check their state’s Workers’ Compensation laws to determine which exceptions could apply to their circumstances.

KNOW YOUR RIGHTS; AVOID BEING IN THE WRONG

These employment laws, in addition to the many others that have been enacted, are there to protect both employers and their employees. Legislation differs by state and varies significantly based on industry and job function.

Free Consultation with a Utah Business Lawyer

If you are here, you probably have a business law issue you need help with, call Ascent Law for your free business law consultation (801) 676-5506. We want to help you.

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

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4.9 stars – based on 67 reviews

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