In Virginia a child custody order is never really final - meaning that you can always file to have it reconsidered. However, the basis by which the court will allow the reconsideration is the occurrence of a material change of circumstances. It is important to understand that the reconsideration of a previous child custody order is a two part process.
The first part is the occurrence of a material change of circumstances. The party filing for the change of custody will be required to prove to the court that there has been a material change. The court will take into consideration both positive and negative circumstances of the parties involved and determine if there has been a material change of circumstances. What circumstances (?) should be your next question!
Based on the historical records of the courts, whether or not a material change has occurred may involve a multitude of factors. For example, the preference of the child, a change in the requirements of employment, divorce, remarriage, physical and mental health, etc. The list of what may be considered with respect to a material change is very broad and may include even the moral environment in which the child is being raised.
If the court finds that there has been a change, then, and only then, will the court consider the second part - that is whether or not it is in the child's best interest to change the prior order. What often confuses folks is that even though the court may find that a material change has occurred does not mean that custody will be changed. It simply means that the court will consider changing the prior custody order. The final decision of the court to change a prior custody order is based solely on the best interests of the child.
The Virginia Code, as amended, section 20-124.3 details the statutory criteria to be considered in determining the Best Interests of The Child with respect to custody or visitation.
Wednesday, April 11, 2012
Tuesday, February 14, 2012
Stepparent Adoption
Adoption can take on various forms depending on the parties to the adoption. For example, there are close family adoptions, over 18 adoptions, in-state and out-of-state adoptions, international adoptions and stepparent adoptions. This blog will deal specifically with stepparent adoptions.
A stepparent adoption takes place when the spouse of a child’s birth parent seeks to legally adopt one or more children of their spouse. While we speak of birth parents, the custodial parent may have previously adopted the child. An important distinction is made here in that following the adoption you are the parent! While often a stepparent adoption arises following the divorce of the birth parents, the birth parents need not of been married. The death of a birth parent and the subsequent marriage of the surviving spouse could also bring about a stepparent adoption.
In Virginia, the non-biological parent petitions the local Circuit Court with the biological parent joining in, and with the non-custodial parent signing a Consent for Adoption. The fact that the biological parent joins the Petition typically prompts the court to waive the requirement for a Home Study. The act of the non-custodial biological parent signing the consent, severs that parents rights over the child, permanently. An important consideration is that if child support is being paid by the non-custodial parent it will end the day the Adoption Order is signed.
If the consent of the non-custodial parent cannot be obtained then there are procedures that may be put into play to facilitate the adoption. For example, if the birth parent’s whereabouts are unknown, or the parent is not involved in the child’s life and refuses to sign the consent, then alternative steps may be taken.
The benefits of adopting a stepchild are endless, and beyond measure, so it is something that should be seriously considered with the child(ren) and other family members. Adopting can create bonds between a child and stepparent that may not otherwise be there; for example, stability. One adoptive father says, “He was already mine. It was just a matter of paper work.” The commitment a stepparent makes to the child by solidifying their family unit is the greatest benefit of a stepparent adoption.
I take great pride in helping families grow through adoption. Personally, it is the most satisfying aspect of my profession. Having suffered the loss of a stepson, I understand and wholeheartedly respect your commitment to your children and your family.
If you just have questions, or for information on initiating this process, contact the Law Office of Kirk D. Berkhimer, P.C.
Thursday, February 9, 2012
How Can I Repair My Credit Score After Bankruptcy? KDB Law Firm Credit and Bankruptcy Part Four
If you have filed for bankruptcy, your credit score will be affected. So how can you be proactive and work to repair your credit? Here are some important steps to take to improve your credit:
1. Pay on Time (By Paying in Advance): Pay your current bills and loans reaffirmed in bankruptcy in advance. In Part One {LINK} and Two {LINK} of the KDB Law Firm series on credit and bankruptcy we discussed the easiest ways to both help, and conversely, harm, your FICO score: your payment history. As you now know, your payment history is 35% of your FICO score.
2. Follow Up with the Three Major Credit Reporting Agencies: Send each reporting agency a copy of your discharge notice as well as the schedule of creditors listed in your bankruptcy (schedules D, E, F). This is an important element to being repairing your credit after bankruptcy, as creditors are no longer able to report the discharged debt as owing on your credit file.
3. Monitor your Credit: Check with each credit agency quarterly to confirm that the creditors are abiding by the discharge order and your discharged debt is being accurately reported. If a creditor fails to accurately report the debt as discharged or is continuing to attempt to collect on the debt, they are committing “discharge violation”. If you notice such discharge violation, which is common in most cases, contact your attorney immediately.
4. Wait Before Seeking New Credit: Hold off as long as possible before seeking credit. You will find lenders who will make loans to you immediately after a bankruptcy, and they will seek you out. It is not uncommon to receive credit card offers in the mail even before you receive your discharge! However, you can expect to pay rates 5-10% higher than most people. That may not seem like a lot, but based on an average 30-year financial lifetime, the additional interest you could pay could end up as much as $200,000 or more.
5. Rebuild Credit with a Secured Credit Card: Many people looking to repair their credit start with a local credit union or bank and open a secured credit card. A secured card (meaning you back it with equal funds in a savings account) will help rebuild your credit history. After 6 months to a year of using a secured card you will find that you can get a more traditional credit card without having to put up the cash first. However, even then be very careful and read the fine print!
In summary: after you file for bankruptcy and receive your discharge, be sure to monitor your score diligently, pay your bills slightly in advance, wait until your score improves before seeking new lines of credit, and improve your score by using a secured credit card.
For more bankruptcy information, visit http://www.KDBLawFirm.net/.
Be safe and be well! ~Kirk Berkhimer, Norfolk Bankruptcy Attorney
Are you enjoying Twitter as much as I am? Find me at @Norfolk_Lawyer.
Divorce: Is it support or property?
In 2005 Title 11 of the U.S. Code was modified. The changes were far reaching and significant. One of those changes prohibited the discharge, in a Chapter 7 Petition, of debts and obligations owed to former spouses and/or children as a result of divorce.
However, by choosing to file under Chapter 13 those debts or obligations not considered "Domestic Support Obligations" are dischargeable.
Give us a call: 757-410-9263,
Visit us at http://www.KDBLawFirm.net, or
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Monday, January 9, 2012
Property: Is it Real or is it Personal?
A key aspect of Bankruptcy is determining what you owe and what you own. Usually, what you owe is fairly simple because it seems like whichever way you turn they're there just waiting to tell you what you owe them! Unfortunately, what you own, while not complicated, may take a little time.
First - property to typically broken into two categories, Real and Personal. In Law School I heard that an easy way to understand what Real Property is if you can move it it's likely Personal Property - everything else is Real Property.
The formal definitions are that Personal Property is any movable or intangible thing that is subject to ownership and not classified as Real Property. Real Property is Land and anything growing on, attached to, or erected on it, excluding anything that may be severed without injury to the land.
In every day Americana and in the context of Bankruptcy Real Property is the home you live in, and Personal Property consists of what you would consider your personal possessions. Real Property is easily inventoried, however, Personal Property make take a little bit of time.
It is important that you capture the extent of your belongings, from socks to lawn mowers. The easiest way that I have found to do this is approach the task room by room. Start in the kitchen and develop a list of the pots and pans, silverware, furniture, etc. Keep in mind that the stove and dishwasher likely came with the house and are part of your Real Property. Then keep the process moving room by room.
We developed a spreadsheet that provides a handy format for capturing the list. Once you have the list then you will need to place a value to your property. This is the replacement value - what you could buy it for from a retail vendor considering its condition and age.
Keep in mind that stocks and bonds, insurance policies, jewelry, cars, collectables, etc., are all considered Personal Property. Tax Returns are also required to be listed.
If you are looking to start off the New Year with the resolution of getting your finances under control, give us a call today to set an appointment for your FREE consultation.
First - property to typically broken into two categories, Real and Personal. In Law School I heard that an easy way to understand what Real Property is if you can move it it's likely Personal Property - everything else is Real Property.
In every day Americana and in the context of Bankruptcy Real Property is the home you live in, and Personal Property consists of what you would consider your personal possessions. Real Property is easily inventoried, however, Personal Property make take a little bit of time.
It is important that you capture the extent of your belongings, from socks to lawn mowers. The easiest way that I have found to do this is approach the task room by room. Start in the kitchen and develop a list of the pots and pans, silverware, furniture, etc. Keep in mind that the stove and dishwasher likely came with the house and are part of your Real Property. Then keep the process moving room by room.
We developed a spreadsheet that provides a handy format for capturing the list. Once you have the list then you will need to place a value to your property. This is the replacement value - what you could buy it for from a retail vendor considering its condition and age.
Keep in mind that stocks and bonds, insurance policies, jewelry, cars, collectables, etc., are all considered Personal Property. Tax Returns are also required to be listed.
If you are looking to start off the New Year with the resolution of getting your finances under control, give us a call today to set an appointment for your FREE consultation.
757-410-9263
Visit our web site at
Be safe, be blessed and be in control!
Tuesday, January 3, 2012
Creditors; Secured, Unsecured or Priority!
When talking about debts you will often hear folks distinguish between secured and unsecured debt. A secured creditor, or secured debt, is debt that upon the debtor's default the creditor has the right to proceed against collateral and apply those proceeds against payments owed.
Now, in plain English .... let's take a car loan for example. When you purchase a car and take out a loan from a bank to pay for it, the bank will secure the loan with the car. What this means is that if you fall behind on your payments, the Bank has the right to repossess your car. Once the car is repossessed they will most likely try and sell the car and apply whatever money they get towards the outstanding loan balance. The Bank may also add any additional fees that they had to pay in repossessing the car, such as attorney fees, etc. More often than not the money they obtain from the sale of the car will not cover the entire balance left on the loan so they then will come after you for any balance still owed! So, in the end you've lost the car and still owe money!
An unsecured loan or debt would be something like a credit card, personal loan or student loan. With this type of loan the creditor does not have the right to repossess the item you purchased, but instead would likely use the courts to obtain any monies owed from you. Again, let's take an example. Let's say I purchased a couch on a credit card. If and when I fall behind on my monthly payments to the credit card company they have the right to file a Warrant-in-Debt against me personally. Here in Virginia the Warrant-in-Debt is how the creditor asks the courts to verify that you owe the money. Assuming that you are found to owe the money, then ten (10) days after the court hearing they then can obtain a garnishment and take up to 25% of your paycheck to be applied toward the monies owed.
[A warrrant in debt is a summons to a defendant to appear in court because they are being sued for a debt. For example, in Virginia’s General District Court, the most common means to initiate a claim is the Summons for Warrant in Debt. However, the warrant in debt provides only limited information and therefore is a notice-based pleading. Along with the bill of particulars, the warrant in debt makes the pleading fact-based. A warrant in debt is the initial filing to start a garnnishment proceeding in some jurisdictions.]
Several examples of Secured and Unsecured debts are as follow:
Secured: Home mortgage, car loan and high value items such as stereos, computers, air conditioners, etc.
Unsecured: Credit cards, medical bills, student loans, etc.
There is a third type of debt that comes into play during Bankruptcy - Priority Debt. This category identifies creditors that are given special attention. The most common examples are income tax debts and past due alimony or child support payments.
If you are considering bankruptcy, then understanding what type of debt you have is important. Depending on whether you file a Chapter 7 or Chapter 13 Petition will provide you various options in dealing with your debt. For example, in a Chapter 13 Bankruptcy Petition if you are behind in your car payments you may bring your payments current and keep your car.
Next time we'll talk some about property - what types there are and how it is handled in a Bankruptcy. If you'd like to come in for a FREE CONSULTATION, please, give me a call!
Now, in plain English .... let's take a car loan for example. When you purchase a car and take out a loan from a bank to pay for it, the bank will secure the loan with the car. What this means is that if you fall behind on your payments, the Bank has the right to repossess your car. Once the car is repossessed they will most likely try and sell the car and apply whatever money they get towards the outstanding loan balance. The Bank may also add any additional fees that they had to pay in repossessing the car, such as attorney fees, etc. More often than not the money they obtain from the sale of the car will not cover the entire balance left on the loan so they then will come after you for any balance still owed! So, in the end you've lost the car and still owe money!
An unsecured loan or debt would be something like a credit card, personal loan or student loan. With this type of loan the creditor does not have the right to repossess the item you purchased, but instead would likely use the courts to obtain any monies owed from you. Again, let's take an example. Let's say I purchased a couch on a credit card. If and when I fall behind on my monthly payments to the credit card company they have the right to file a Warrant-in-Debt against me personally. Here in Virginia the Warrant-in-Debt is how the creditor asks the courts to verify that you owe the money. Assuming that you are found to owe the money, then ten (10) days after the court hearing they then can obtain a garnishment and take up to 25% of your paycheck to be applied toward the monies owed.
[A warrrant in debt is a summons to a defendant to appear in court because they are being sued for a debt. For example, in Virginia’s General District Court, the most common means to initiate a claim is the Summons for Warrant in Debt. However, the warrant in debt provides only limited information and therefore is a notice-based pleading. Along with the bill of particulars, the warrant in debt makes the pleading fact-based. A warrant in debt is the initial filing to start a garnnishment proceeding in some jurisdictions.]
Several examples of Secured and Unsecured debts are as follow:
Secured: Home mortgage, car loan and high value items such as stereos, computers, air conditioners, etc.
Unsecured: Credit cards, medical bills, student loans, etc.
If you are considering bankruptcy, then understanding what type of debt you have is important. Depending on whether you file a Chapter 7 or Chapter 13 Petition will provide you various options in dealing with your debt. For example, in a Chapter 13 Bankruptcy Petition if you are behind in your car payments you may bring your payments current and keep your car.
Next time we'll talk some about property - what types there are and how it is handled in a Bankruptcy. If you'd like to come in for a FREE CONSULTATION, please, give me a call!
757-410-9263
Visit our web site at http://www.KDBLawFirm.net
and follow us on Twitter
@norfolk-lawyer.
Be safe, be blessed and be proactive!
Monday, January 2, 2012
How is My Credit Affected if I File Bankruptcy? KDB Law Firm Credit and Bankruptcy Part Three
In Part One and Two of our series on credit and bankruptcy we have discussed how to improve your credit score as well as the impact of missed payments on your credit score. If you are feeling financially overwhelmed and considering bankruptcy, the question of what happens to your credit in the event you file bankruptcy is a common one.
To be very clear, filing for bankruptcy will definitely affect your credit score. But how filing bankruptcy affects your credit score really depends on the state of your credit score prior to filing. You may be surprised to find out that bankruptcy will not, in some cases, cause as big a hit in your credit score as you assume.
Let me explain: if your credit score is very poor due to delinquent accounts, maxed out credit cards, charged off accounts or collection accounts, filing for bankruptcy protection won’t affect your score that negatively (granted, your score is most likely already low). The reason for this is that once your debt is discharged, your creditors must update your credit report to reflect the account as being “discharged in bankruptcy” and must change the balance owing to “$0”, and all ongoing derogatory reporting must permanently cease. Granted, you aren't likely to see a big jump but if you've just been scraping by, your score isn't likely to fall much further.
On the other hand, if you have remained current on all your payments and your credit score is immaculate, your credit score will take a hit after filing chapter 7 bankruptcy. However, many clients find that discharging the debt they may otherwise never be able to pay off is worth the temporary hit to their FICO score.
Ultimately, if you are considering bankruptcy, how it may affect your credit score is important information to understand, but then again, your credit score alone shouldn't affect whether or not you decide to file bankruptcy.
That said- if your debt payments are crushing you, bankruptcy can give you a much-needed fresh start. While filing for bankruptcy protection will affect your credit score, it may not be as negative as you may think. And with credit repair strategies, you may be giving yourself a much-needed boost to long-term financial freedom down the road.
We will discuss repairing your credit after bankruptcy in Part Four (coming soon) of our series on credit and bankruptcy.
If you want more information on filing bankruptcy, visit http://www.KDBLawFirm.net/.
Be safe and be well! ~KirkBerkhimer, Norfolk Bankruptcy Attorney
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