familyLaw

Law Offices of Robert G. McCoy and Associates, P.C.

Serving Riverside and San Bernardino Counties

909-467-1169

SOME BANKRUPTCY AND FAMILY LAW CROSS-OVER ISSUES:

1. The automatic stay/injunction issue.

When a bankruptcy petition is filed, an "automatic stay" is issued. When a divorce petition is filed, an automatic "injunction" is issued. When both a bankruptcy and divorce petition are filed, both a stay and injunction are issued. The bankruptcy stay does not halt child support or child custody proceedings, but may halt certain types of collection efforts to enforce support. Permission may need to be obtained from the bankruptcy judge to employ certain types of collection efforts used to collect support. Also, the family law court may not divide assets or debts until the bankruptcy case is closed or until the permission of the bankruptcy court is obtained. The bankruptcy stay does not prevent the filing of a Petition for divorce, and does not preclude the family court from entering a status judgment of divorce. Likewise, the divorce injunction does not prohibit any party from filing for bankruptcy.

2. The discharge issue.

A bankruptcy discharge in a Chapter 7 case will not discharge any debts distributed in a divorce decree. However, a Chapter 13 case will discharge such debts. If a Chapter 7 bankruptcy discharge is granted as to one spouse before a divorce decree is issued, then there is a legal question whether the Family Court judge has the authority to redistribute the discharged debts to the spouse who obtained the bankruptcy discharge.

The Law Office of Robert McCoy has been practicing family law for over 14 years, and has handled several complex cases involving multiple businesses, properties and interstate issues. The Law Office handles bankruptcy-divorce crossovers, and Robert McCoy is a recognized expert in these types of cases. Robert McCoy is an instructor for Sterling Education Services and teaches other attorneys how to handle divorce-bankruptcy cross-overs.

Frequently Asked Family Law Questions:

What is mediation?

What is a parenting plan?

Who conducts the mediation?

How does mediation work?

Do mediators interview children?

Is mediation confidential?

Do mediators recommend counseling?

What is a limited evaluation?

What is the difference between legal custody and physical custody?

What is Mediation?

Mediation is process by which the parents who are in dispute over the custody and/or visitation of their children may meet with mediator in a neutral setting and work on their own parenting plan. The Family Code provides that parents shall have the opportunity and the right to present the court with their own parenting plan.

What is a Parenting Plan?

When parents are separated, the parenting plan defines custody and time sharing of the children.

Who Conducts the Mediation?

A trained family counselor will meet with the parents to assist them in preparing a parenting plan. The mediator represents to the parents what appears to be in the best interest of the children as well as the importance of continuing and frequent contact with both parents.

How Does Mediation Work?

The mediator will prepare in detail the parenting plan that the parents agree to present to the court. If the parents fail to reach agreement on a plan, the mediator will be asked by the court to submit a report of the issues and circumstances relating to the custody of the children. In some courts, the mediator will make a recommendation.

Do Mediators Interview Children?

The mediator may need to interview the children. Do not bring children below the age of five.

What Kinds of Issues Must the Mediator Report?

The mediator is required by law to report child abuse or neglect to the proper authorities. The mediator is required by the Family Code to report domestic violence or drug abuse.

What About Resources?

The mediator may recommend counseling or other community resources to assist the family.

What is a Limited Evaluation?

In some custody cases the court needs more information regarding some issues relating to the family in order to make a custody order. A member of the Family Court Services will conduct the evaluation and report to the court. The cost is $300.00 to the parents.

Legal Terms Relating to Child Custody:

Visitation: The designated time in which the non-custodial parent shall have responsibility of the children.

Legal Custody: The rights and responsibilities of parents to make decisions relating to the health, education and welfare of their children.

Joint Legal Custody: Both parents share in the right and responsibility to make decisions relating to the health, education and welfare of a child.

Sole Legal Custody: One parent has the right and responsibility to make decisions relating to the health, education and welfare of a child.

Physical Custody: How much time the children spend with each parent; where the children live; how day-to-day responsibilities are fulfilled.

Joint Physical Custody: Children spend a significant amount of time with each parent.