February 22, 2018

Alimony in Divorce & Bankruptcy

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In Divorce:
“In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall consider the evidence presented by each party and shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability and feasibility of such parent’s securing employment.” -Connecticut General Statutes Section 46b-82

In Bankruptcy:
Alimony is treated as ordinary income or a necessary expense (depending if you are receiving it or paying it) in Bankruptcy. Back-owed alimony is not discharge-able in Bankruptcy.

If you have questions about Divorce or Bankruptcy, please contact me here for a free consultation.

Attorney for the Minor Child

1. What is an Attorney for a Minor Child (AMC)?
An attorney for a minor child, often referred to as an AMC and also called Counsel for the Minor Child is an individual the court appoints, either upon motion of a party or when the court determines an AMC is necessary to advocate for the best interests of the child. The court will consider the appointment of an AMC if the parties are unable to resolve a parenting or child related dispute. The AMC’s role is different from that of a guardian ad litem (GAL). The AMC represents the child’s legal interests and supports the child’s best interests, while the GAL represents only the child’s best interests.

2. Who can be an AMC?

Only an attorney who has completed the comprehensive training program required by Practice Book Section 25-62, which is sponsored by the Judicial Branch, is eligible to be an AMC. The AMC cannot be the same attorney that is representing either of the parents.

3. What is the role of an AMC?
In cases where the parties are unable to agree on a parenting plan or there is a child related dispute, the court may appoint an AMC to be the child’s attorney. The court will specify the role of the AMC in each case. Just as the parents may have their own attorneys advocating on their behalf, the AMC represents the child’s wishes and advocates on the child’s behalf. The AMC can speak in court on all matters pertaining to the interests of the child including custody, care, support, education and visitation. The AMC can also file motions and call witnesses on behalf of the child in court. Unlike a GAL, an AMC does not testify as a witness, but participates fully as a lawyer in the case.

4. What can a parent in a family court matter expect from an AMC?

The AMC is expected to avoid any conflict of interest, be courteous and professional and act in good faith. An AMC is bound by the Rules of Professional Conduct governing attorneys in Connecticut. The client, however, is not either of the parents, but the child. The AMC’s duty is to the child, and the parents should not expect the AMC to advocate or argue on their behalf.

5. Who pays the AMC?

The parties to the case pay the fees for the AMC. Each party is required to submit a financial affidavit to the court. The court will consider each party’s financial situation and order how such payment is to be split between them. In some cases, the parties may qualify for the appointment of an AMC that is paid for by the state. The parties must submit their financial affidavits to the court for review. If the parties meet the eligibility requirements of the Division of Public Defender Services, the court will appoint an AMC who is paid for by the state.

6. Can an AMC be removed from a case?

If a party believes that an AMC has acted improperly in a family case, he or she can file a motion to ask the court to remove the AMC from the case. After the motion is filed, the court may refer the motion to the Family Services Unit of the court. If the parties involved in the case cannot resolve the motion themselves, the court will have a hearing and decide the motion.

REPOSTED FROM: http://www.jud.ct.gov/faq/family.htm#1

Divorce without an Agreement

While it is always preferable if you and your spouse can work out the terms of your divorce, if you are unable to do so, a judge will make the decisions that will impact your family, such as:

  • who will have custody of your children
  • how to divide your property and assets
  • how to pay your debts
  • whether either spouse gets alimony

Note: This information also applies to dissolution of civil unions performed in a foreign jurisdiction.

REPOSTED FROM: The Connecticut Judicial Branch Website.

For more information, please contact Attorney Theresa Rose DeGray at 203-713-8877.

Nisi Period (Latin for “Cooling-Off Period”)

Divorce

Please be aware that in Connecticut, all parties must wait 90 days to obtain a divorce, unless the parties are eligible for a nonadversarial (simplified) divorce or unless the parties have an agreement on all terms of the divorce and ask the court to waive the 90-day waiting period.

Connecticut law provides individuals with options when filing for a divorce.

The following are the different types of divorce processes:

Nonadversarial (simplified or “non-ad”) divorce
This type of divorce is a simplified process by which eligible parties may obtain a divorce within days without having to appear before a judge.
Divorce with an Agreement (or “waive 90”)
If you and your spouse have an agreement as to all issues, you may ask the court to waive the 90-day waiting period that is otherwise required by law, and get divorced at almost any time you choose.
Divorce without an Agreement
It is always preferable for you and your spouse to agree on the terms of your divorce. However, if you are unable to do so, a judge will make decisions regarding alimony, custody and visitation.

(Reposted from the State of Connecticut Judicial Branch Website)

Administration and Operation of the [Connecticut] Courts

The Chief Justice of the Supreme Court is the head of the Judicial Branch. Its administrative director is called the Chief Court Administrator.

Judicial Functions
The judicial functions of the Branch are concerned with the just disposition of cases at the trial and appellate levels. All judges have the independent, decision-making power to preside over matters in their courtrooms and to determine the outcome of each case before them.

Administrative Operations
The Chief Court Administrator is responsible for the administrative operations of the Judicial Branch. In order to provide the diverse services necessary to effectively carry out the Judicial Branch’s mission, the following administrative divisions have been created: Administrative Services Division | Court Support Services Division | External Affairs Division | Information Technology | Superior Court Operations

 

Administrative Services Division – Provides a wide array of centrally conducted, statewide services for the benefit of all divisions within the Judicial Branch, such as data processing, financial services, personnel matters and facilities management.

Court Support Services Division

  • Office of Adult Probation – Conducts presentence investigations ordered by the Superior Court and supervises probationers in all cases except juvenile matters.
  • Office of Alternative Sanctions – Creates and sustains a full range of alternatives to incarceration for both pre- and post-conviction adult and juvenile populations.
  • Bail Commission – Interviews and investigates individuals accused of crimes to assist the Superior Court in determining terms and conditions of pretrial release.
  • Family Services Division – Assists the Superior Court in the resolution of problems and the adjudication of cases involving family relationships, family support, child protection and juvenile delinquency. Among the services provided by the Family Division are: mediation of domestic disputes, evaluation of child custody and visitation conflicts, juvenile probation services, divorce counseling, residential placement, restitution and community services.
  • Division of Juvenile Detention Services – Provides pretrial secure detention and programming services to juveniles accused of delinquent acts.

External Affairs DivisionCoordinates a variety of legislative, educational and informational activities designed to inform and educate the public and private sectors about the mission, activities and goals of the Judicial Branch.

Information Technology Division –
The Information Technology (IT) Division consists of:

  • The Commission on Official Legal Publications (COLP) – COLP prints and distributes all Judicial publications including such things as the Connecticut Law Journal, Connecticut Reports, the Connecticut Practice Book and official court forms.
  • Judicial Information Systems (JIS) – JIS is responsible for Applications Development and Support, Network and Systems Support, Architecture & Standards as well as Service & Delivery Support.

Superior Court Operations – The Superior Court Operations Division includes the following:

  • Administration – Provides support services and guidance to all segments of the Division by directing the administrative, strategic planning, staff training and business activities, and provides for court transcript services, interpreter services, and the preservation and disposition of seized property; and, the maintenance, retrieval and destruction of records.
  • Court Operations – Ensures that the Superior Court Clerk’s offices process all matters in accordance with Statutory, Practice Book and Judicial Branch policy provisions in an efficient and professional manner through the provision of technical assistance and support services including the Centralized Infractions Bureau and Jury Administration.
  • Judge Support Services – Ensures the prompt delivery of services and programs to Superior Court judges and Family Support Magistrates pertaining to law libraries, legal research, judicial performance evaluations, continuing education and support for technology; and manages grants program.
  • Legal Services – Determines legal issues and provides support services in the areas of attorney ethics, discipline and bar admission.
  • Support Enforcement Division – Enforces, reviews and adjusts family support orders in accordance with federal and state regulation, rules and statutes.
  • Office of Victim Services – Advocates for victims of crime, arranges services, provides assistance and financial compensation.

(Reposted from the Connecticut Judicial Branch Website)

Organization of the Courts [In Connecticut]: Superior Court

The Superior Court hears all legal controversies except those over which the Probate Court has exclusive jurisdiction. Probate Court matters may be appealed to the Superior Court.

A superior court courtroom The state is divided into 13 judicial districts, 20 geographical areas and 12 juvenile districts. In general, major criminal cases, civil matters and family cases not involving juveniles are heard at judicial district court locations. Other civil and criminal matters are heard at geographical area locations. Cases involving juveniles are heard at juvenile court locations.

The Superior Court has four principal trial divisions: civil, criminal, family and housing.

Civil Division – A civil case is usually a matter in which one party sues another to protect civil, personal or property rights. Examples of typical civil cases include landlord-tenant disputes, automobile or personal accidents, product or professional liability suits and contract disputes. In most civil cases, the accusing party (plaintiff) seeks to recover money damages from another party (defendant). Cases may be decided by the judge or by a jury, depending on the nature of the claim and the preference of the parties.

Criminal Division – A criminal case is one in which a person (defendant) is accused of breaking the law. The two sides in a criminal case are the state, represented by a state’s attorney (because crimes are considered acts that violate the rights of the entire state), and the defendant. Crimes (felonies and misdemeanors), violations and infractions are heard in the Criminal Division.

Housing Division – Cases involving housing are heard in special housing sessions in the Bridgeport, Hartford, New Haven, Stamford-Norwalk and Waterbury judicial districts. In all other judicial districts, these cases are part of the regular civil docket.

Family Division – The Family Division is responsible for the just and timely resolution of family relations matters and juvenile matters. Examples of family relations matters include: dissolution of marriage, child custody, relief from abuse and family support payments. Juvenile matters include: delinquency, child abuse and neglect, and termination of parental rights.

(Reposted from the Connecticut Judicial Branch Website)

Dispel the Myths

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Organization of the Courts [In Connecticut]: Supreme Court

The Supreme Court is the state’s highest court. It consists of the Chief Justice and six associate justices. In addition, justices who are eligible and who have not yet attained the age of 70 may elect to take senior status and remain as members of the court.

Supreme Court Courtroom

A panel of five justices hears and decides each case. On occasion, the Chief Justice summons the court to sit en banc as a full court of seven, instead of a panel of five, to hear particularly important cases.

The Supreme Court reviews decisions made in the Superior Court to determine if any errors of law have been committed. It also reviews selected decisions of the Appellate Court.

Generally, the Supreme Court does not hear witnesses or receive evidence. It decides each case on:

  • the record of lower court proceedings;
  • briefs, which are used by counsel to convey to the court the essential points of each party’s case; and,
  • oral argument based on the content of the briefs.

State law specifies which types of appeals may be brought directly to the Supreme Court from the Superior Court, thereby bypassing the Appellate Court. These cases include: decisions where the Superior Court has found a provision of the state constitution or a state statute invalid and convictions of capital felonies. All other appeals are brought to the Appellate Court.

The Supreme Court may transfer to itself any matter filed in the Appellate Court, and may agree to review decisions of the Appellate Court through a process called certification. Except for any matter brought under its original jurisdiction, as defined by the State Constitution, the Supreme Court may transfer any matter pending before it to the Appellate Court.

(Reposted from the Connecticut Judicial Branch Website)

New Bankruptcy Form, Rules Take Effect

Individuals filing for bankruptcy under Chapter 13 must use a new form that presents their payment plan in a more uniform and transparent manner, and creditors will have less time to submit a proof of claim, under new bankruptcy rules and form amendments that took effect Dec. 1.

By creating greater uniformity of where specific types of information must be entered, the new national Chapter 13 plan form will make it easier for creditors, lawyers and judges to ensure that all elements of a bankruptcy agreement reached under Chapter 13 comply with federal laws. Chapter 13, sometimes known as the wage earner’s plan, enables qualified individual filers to reschedule and make debt payments, allowing them to keep their homes and other property.

Bankruptcy courts previously had relied on local versions of Chapter 13 plans, which varied from district to district, in resolving Chapter 13 cases. They now must either use a new national Bankruptcy Form 113, or create a locally adapted form that contains key elements of the national form. In recent months, courts have been updating electronic filing systems and notifying local bankruptcy lawyers and filers of the pending changes.

The deadline for creditors to file a proof of claim was revised in an amendment to Federal Rules of Bankruptcy Procedure 3002.

The new deadline will affect bankruptcies filed under Chapter 7, in which debtors liquidate assets; Chapter 12, which enables family farmers and fishermen to restructure their finances; and Chapter 13. Previously creditors had 90 days after an initial meeting of creditors was held. Now, a proof of claim must be submitted within 70 days of the filing of a bankruptcy petition.

Federal rules amendments typically follow a three-year process, which includes multiple layers of review and extensive public comment.

In April, the Supreme Court transmitted the new rules regarding bankruptcy, as well as amendments to Appellate and Civil Rules of Procedure, and Rules of Evidence, to Congress. The new rules took effect Dec. 1 when Congress did not act to prevent their implementation.

Find a full list of the new rules and form amendments and the Current Rules of Practice and Procedure. Find additional information about the bankruptcy process.

(Re-posted from http://www.uscourts.gov/news/2017/12/01/new-bankruptcy-form-rules-take-effect)

Process – Bankruptcy Basics

Article I, Section 8, of the United States Constitution authorizes Congress to enact “uniform Laws on the subject of Bankruptcies.” Under this grant of authority, Congress enacted the “Bankruptcy Code” in 1978. The Bankruptcy Code, which is codified as title 11 of the United States Code, has been amended several times since its enactment. It is the uniform federal law that governs all bankruptcy cases.

The procedural aspects of the bankruptcy process are governed by the Federal Rules of Bankruptcy Procedure (often called the “Bankruptcy Rules”) and local rules of each bankruptcy court. The Bankruptcy Rules contain a set of official forms for use in bankruptcy cases. The Bankruptcy Code and Bankruptcy Rules (and local rules) set forth the formal legal procedures for dealing with the debt problems of individuals and businesses.

There is a bankruptcy court for each judicial district in the country. Each state has one or more districts. There are 90 bankruptcy districts across the country. The bankruptcy courts generally have their own clerk’s offices.

The court official with decision-making power over federal bankruptcy cases is the United States bankruptcy judge, a judicial officer of the United States district court. The bankruptcy judge may decide any matter connected with a bankruptcy case, such as eligibility to file or whether a debtor should receive a discharge of debts. Much of the bankruptcy process is administrative, however, and is conducted away from the courthouse. In cases under chapters 7, 12, or 13, and sometimes in chapter 11 cases, this administrative process is carried out by a trustee who is appointed to oversee the case.

A debtor’s involvement with the bankruptcy judge is usually very limited. A typical chapter 7 debtor will not appear in court and will not see the bankruptcy judge unless an objection is raised in the case. A chapter 13 debtor may only have to appear before the bankruptcy judge at a plan confirmation hearing. Usually, the only formal proceeding at which a debtor must appear is the meeting of creditors, which is usually held at the offices of the U.S. trustee. This meeting is informally called a “341 meeting” because section 341 of the Bankruptcy Code requires that the debtor attend this meeting so that creditors can question the debtor about debts and property.

A fundamental goal of the federal bankruptcy laws enacted by Congress is to give debtors a financial “fresh start” from burdensome debts. The Supreme Court made this point about the purpose of the bankruptcy law in a 1934 decision:

[I]t gives to the honest but unfortunate debtor…a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.

Local Loan Co. v. Hunt, 292 U.S. 234, 244 (1934). This goal is accomplished through the bankruptcy discharge, which releases debtors from personal liability from specific debts and prohibits creditors from ever taking any action against the debtor to collect those debts. This publication describes the bankruptcy discharge in a question and answer format, discussing the timing of the discharge, the scope of the discharge (what debts are discharged and what debts are not discharged), objections to discharge, and revocation of the discharge. It also describes what a debtor can do if a creditor attempts to collect a discharged debt after the bankruptcy case is concluded.

Six basic types of bankruptcy cases are provided for under the Bankruptcy Code, each of which is discussed in this publication. The cases are traditionally given the names of the chapters that describe them.

Chapter 7, entitled Liquidation, contemplates an orderly, court-supervised procedure by which a trustee takes over the assets of the debtor’s estate, reduces them to cash, and makes distributions to creditors, subject to the debtor’s right to retain certain exempt property and the rights of secured creditors. Because there is usually little or no nonexempt property in most chapter 7 cases, there may not be an actual liquidation of the debtor’s assets. These cases are called “no-asset cases.” A creditor holding an unsecured claim will get a distribution from the bankruptcy estate only if the case is an asset case and the creditor files a proof of claim with the bankruptcy court. In most chapter 7 cases, if the debtor is an individual, he or she receives a discharge that releases him or her from personal liability for certain dischargeable debts. The debtor normally receives a discharge just a few months after the petition is filed. Amendments to the Bankruptcy Code enacted in to the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 require the application of a “means test” to determine whether individual consumer debtors qualify for relief under chapter 7. If such a debtor’s income is in excess of certain thresholds, the debtor may not be eligible for chapter 7 relief.

Chapter 9, entitled Adjustment of Debts of a Municipality, provides essentially for reorganization, much like a reorganization under chapter 11. Only a “municipality” may file under chapter 9, which includes cities and towns, as well as villages, counties, taxing districts, municipal utilities, and school districts.

Chapter 11, entitled Reorganization, ordinarily is used by commercial enterprises that desire to continue operating a business and repay creditors concurrently through a court-approved plan of reorganization. The chapter 11 debtor usually has the exclusive right to file a plan of reorganization for the first 120 days after it files the case and must provide creditors with a disclosure statement containing information adequate to enable creditors to evaluate the plan. The court ultimately approves (confirms) or disapproves the plan of reorganization. Under the confirmed plan, the debtor can reduce its debts by repaying a portion of its obligations and discharging others. The debtor can also terminate burdensome contracts and leases, recover assets, and rescale its operations in order to return to profitability. Under chapter 11, the debtor normally goes through a period of consolidation and emerges with a reduced debt load and a reorganized business.

Chapter 12, entitled Adjustment of Debts of a Family Farmer or Fisherman with Regular Annual Income, provides debt relief to family farmers and fishermen with regular income. The process under chapter 12 is very similar to that of chapter 13, under which the debtor proposes a plan to repay debts over a period of time – no more than three years unless the court approves a longer period, not exceeding five years. There is also a trustee in every chapter 12 case whose duties are very similar to those of a chapter 13 trustee. The chapter 12 trustee’s disbursement of payments to creditors under a confirmed plan parallels the procedure under chapter 13. Chapter 12 allows a family farmer or fisherman to continue to operate the business while the plan is being carried out.

Chapter 13, entitled Adjustment of Debts of an Individual With Regular Income, is designed for an individual debtor who has a regular source of income. Chapter 13 is often preferable to chapter 7 because it enables the debtor to keep a valuable asset, such as a house, and because it allows the debtor to propose a “plan” to repay creditors over time – usually three to five years. Chapter 13 is also used by consumer debtors who do not qualify for chapter 7 relief under the means test. At a confirmation hearing, the court either approves or disapproves the debtor’s repayment plan, depending on whether it meets the Bankruptcy Code’s requirements for confirmation. Chapter 13 is very different from chapter 7 since the chapter 13 debtor usually remains in possession of the property of the estate and makes payments to creditors, through the trustee, based on the debtor’s anticipated income over the life of the plan. Unlike chapter 7, the debtor does not receive an immediate discharge of debts. The debtor must complete the payments required under the plan before the discharge is received. The debtor is protected from lawsuits, garnishments, and other creditor actions while the plan is in effect. The discharge is also somewhat broader (i.e., more debts are eliminated) under chapter 13 than the discharge under chapter 7.

The purpose of Chapter 15, entitled Ancillary and Other Cross-Border Cases, is to provide an effective mechanism for dealing with cases of cross-border insolvency. This publication discusses the applicability of Chapter 15 where a debtor or its property is subject to the laws of the United States and one or more foreign countries.

In addition to the basic types of bankruptcy cases, Bankruptcy Basics provides an overview of the Servicemembers’ Civil Relief Act, which, among other things, provides protection to members of the military against the entry of default judgments and gives the court the ability to stay proceedings against military debtors.

This publication also contains a description of liquidation proceedings under the Securities Investor Protection Act (“SIPA”). Although the Bankruptcy Code provides for a stockbroker liquidation proceeding, it is far more likely that a failing brokerage firm will find itself involved in a SIPA proceeding. The purpose of SIPA is to return to investors securities and cash left with failed brokerages. Since being established by Congress in 1970, the Securities Investor Protection Corporation has protected investors who deposit stocks and bonds with brokerage firms by ensuring that every customer’s property is protected, up to $500,000 per customer.

The bankruptcy process is complex and relies on legal concepts like the “automatic stay,” “discharge,” “exemptions,” and “assume.” Therefore, the final chapter of this publication is a glossary of Bankruptcy Terminology which explains, in layman’s terms, most of the legal concepts that apply in cases filed under the Bankruptcy Code.

Reprinted from http://www.uscourts.gov/services-forms/bankruptcy/bankruptcy-basics/process-bankruptcy-basics

This firm is a debt relief agency. We help people file for bankruptcy relief amongst other things, under the Bankruptcy Code.