Bankruptcy Questions & Answers


BANKRUPTCY

Do I need an attorney to file Bankruptcy?

Not in most Chapter 7 and Chapter 13 cases. More often than not, filing a bankruptcy petition is a simple process which can be handled through a competent paralegal. That is not to say that there are not cases with extenuating circumstances which would require the legal advise of an attorney, and a paralegal may under no circumstances give any legal advice to any debtor.

I just filed a Chapter 7 bankruptcy petition, will I ever be able to get credit again?

Yes. Though a bankruptcy may stay on your credit file for seven to ten years, most creditors are now looking at what you do with your credit after the filing of your petition. Certainly there will be creditors who will see a bankruptcy on your credit report and may not extend credit to you. On the other hand you will also find creditors who see that you now have no debts and can not file another bankruptcy for at least seven years and may figure that you are a good risk.

What is the difference between a Chapter 7 and a Chapter 13 bankruptcy?

In a Chapter 7 bankruptcy, you are requesting, in a sense, that the court relieve you of all your debts, wiping them out so that you do not have to pay them. In the Chapter 13 bankruptcy, you provide the court with a proposed payment plan to pay off your creditors within three to five years.

FAMILY LAW

Does the mother of the children automatically get custody?

Increasingly, no. California follows a gender-neutral policy, and more and more competent fathers are obtaining custody of their children. The court's main concern is what is best for the minors in question.

My spouse and I lived together for five years before we married and we have now been living separately for a year. Isn't all of this time considered part of the marriage?

Assuming all this occurred in California, the answer to the first part is NO. Unlike some other states, California does not recognize "common law marriages" so the five years of co-habitation is NOT part of the marriage and the rights of the divorcing spouses do not apply to the division of assets and debts for this period. The year of living separately is a more difficult question. Whether this year is part of the marital period or not depends on whether one or both determined the relationship was over, whether you held yourselves out to the world as married or separated, whether or not you continued to act or behave as a married couple and several other factors. If the two of you cannot agree on exactly when you separated, a judge will have to make this decision during the divorce.

I worked and earned all the money during the marriage. Aren't I entitled to get all the things we spent the money on?

NO. Under California community property laws, everything you earned from employment after marriage is one half yours and one half your spouse's as is all the property, real and personal, that you purchased with that money.

MISCELLANEOUS:

Don't all attorneys charge a lot of money to represent their clients?

Litigation can be expensive and attorney fees are only part of the picture. How much it costs depends on the type of case, the attorney fee rate, the need for expensive discovery and experts and so on.

Attorneys for personal injury cases generally work on a contingency basis, only collecting a percentage fee if they win your case. The percentage is generally between 30-50% depending on when and how the case ends. In most cases, you will be responsible for the costs in the case (filing fees, service fees, discovery costs, expert costs, etc.) whether or not you win or lose.

Family law and bankruptcy cases are usually charged either by the hour or on a flat fee basis. How much this is varies considerably.

Many attorneys are well aware that legal matters can be very costly and most attorneys will try to work with their clients. Don't be bashful about asking the attorney to outline his/her fees thoroughly for you and to inquire into payment plans or other arrangements. Like other major "purchases", it PAYS to shop around.