Affiliated Attorneys, LLC Blog

Monday, October 26, 2015

Deferred Action for Childhood Arrivals

For many people who were brought to this country as children, the United States is the only home they know but they are not citizens. Immigrants in this situation who meet certain eligibility requirements can apply for Deferred Action for Childhood Arrivals (DACA). This program began in 2012 and was expanded in 2014 when President Obama took executive actions on immigration.

Deferred action is not amnesty or immunity; it is a type of prosecutorial discretion that the government may choose to revoke at any time. It does not provide lawful immigration status or a path to a green card or citizenship. It does not extend to any family members of the person granted deferred action.

Despite these limitations, DACA is often an appealing option because individuals who receive deferred action are not considered unlawfully present for admissibility purposes. In addition, immigrants granted deferred action may be able to get an Employment Authorization Document (EAD) and are sometimes eligible for other government benefits such as drivers licenses or reduced tuition.

Individuals seeking DACA can be any age but must have entered the United States before the age of 16 and lived here continuously since January 1, 2010. Applicants for DACA must be physically present in the United States and have no lawful status. Anyone convicted of a felony, significant misdemeanor or three or more other misdemeanors, or who poses a threat to national security or public safety is not eligible for DACA. Applicants must currently be in school, have graduated (or obtained a GED) or be an honorably discharged veteran.

It is possible to collect the needed documents and fill out an application for DACA without the assistance of an attorney; however, you only get one chance to apply. If the government decides not to grant DACA in your case, you cannot appeal the decision or file a motion to reopen or reconsider. Furthermore, an incomplete application can delay the government’s decision, cost you unnecessary fees or even lead to removal proceedings (deportation). Therefore, it is in your best interests to hire an experienced attorney to assist you with your DACA application.

Monday, October 19, 2015

What should I do if my ex is filing bankruptcy?

Often times, in a divorce settlement, one party will agree to take responsibility for a particular debt that was incurred in both of the spouses names.  If that party subsequently declares bankruptcy, it can result in a confusing situation.

A divorce decree regulates the relationship between two parties who were formerly married.  The divorce agreement has no control over a third party creditor to whom a debt is owed unless they participated in the negotiations.  If a joint debt is made the responsibility of one party, and that party defaults, whether through bankruptcy or by simply failing to make payments, the other spouse may be held liable for the full amount of the debt and interest, even if the divorce decree says he or she should not be held responsible.  Besides the value of the debt, this will affect the innocent spouse’s credit.

If a person finds out that his or her former spouse is attempting to discharge a debt through bankruptcy, that was designated as his or her responsibility via a divorce decree, the innocent spouse can address the issue in a number of ways.  Defaulting on the loan is a violation of the divorce agreement and grounds to bring the defaulting party back to family court to explain why the default occurred.  The family court has broad discretion to resolve the issue and may modify the divorce decree in order to make sure the debt gets paid without great injustice to either party.  The court may allow the innocent spouse to take on the debt, provided that the defaulting party makes regular payments to compensate him or her.  Unfortunately, even if the court finds in favor of the innocent party, there is no guarantee that the defaulting party will make payments as required by the Court.

The issue may also be resolved in bankruptcy court.  If the second spouse also files for bankruptcy protection, the loan in question may be discharged from his or her credit as well.  This method will affect the second spouse’s credit but might be worth looking into depending upon the size of the debt in question.  The spouse may also petition the bankruptcy court to prevent the debt from being discharged if the bankruptcy proceedings are still pending.

Monday, October 12, 2015

Glossary of Estate Planning Terms

Will - a written document specifying a person’s wishes concerning his or her property distribution upon his or her death.

In order to be enforced by a court of law, a will must be signed in accordance with the applicable wills act.

Testator/Testatrix - the person who signs the will.

Heirs - beneficiaries of an estate.

Executor/Executrix - the individual given authority by the testator to make decisions to put the testator’s written directions into effect.

Once the will is entered into probate, the executor’s signature is equivalent to the testator’s. The executor has a legal duty to the heirs of the estate to act in the best interest of the estate, and may collect a fee for performing such service.

Administrator/Administratrix - the person who assumes the role of the executor when a person dies without a will (intestate).

The Administrator must apply with the local probate office and may be required to provide a bond to be held in escrow as collateral for control over the assets of the estate.

Codicil - an amendment to a will.

In order to be valid, a codicil must comply with all the requirements of the applicable wills act.

Holographic Will- a handwritten will. 

Holographic wills are often exempt from requirements of the applicable wills act.

Bequest - a gift given by the testator to his or her heirs through a will.

Residual Estate - the balance of a testator’s belongings after debts have been paid and specific bequests have been distributed. 

Intestate - not having signed a will before one dies; a person who dies without having signed a will.

Life Estate - a bequest that gives an heir the right to have exclusive use of a property for the remainder of his or her life, but without the power to transfer such property upon the death of that heir.

The property will transfer to the heirs of the residual estate after the death of the beneficiary of the life estate.

Per stirpes - a Latin phrase precisely translated as “by the branch” meaning that, if an heir named in the will dies before the testator, that heir’s share will be divided equally among that beneficiary’s own heirs.

 An alternative to per capita, described below.

Per capita - a Latin phrase precisely translated as “by the head” meaning that, if an heir named in the will dies before the testator, that heir’s share will be divided among the testator’s remaining heirs.

 An alternative to per stirpes, described above.

While it is a good idea to have a basic understanding of fundamental estate planning vocabulary, this cannot serve as a substitute for the services of an experienced attorney.

Monday, September 28, 2015

Driving Privileges for Undocumented Immigrants

For undocumented immigrants, one of the biggest obstacles to living a mainstream life in the United States is the inability to obtain a driver’s license. This is troublesome for a number of reasons. In most parts of the country, it is nearly impossible to travel any distance without driving since public transportation is often unreliable and time-consuming. Other alternatives, such as walking and biking are only viable in good weather and for relatively short distances. Relying on others for transportation is not only undependable but requires a degree of indebtedness many travelers want to avoid.

A study by Temple University shows that laws preventing undocumented immigrants from holding a driver's licenses interferes with basic human rights. Without the ability to drive themselves to interviews or employment, most potential jobs are hopelessly out of reach. Moreover, children’s education is often compromised, and it becomes difficult to deal with medical emergencies. Inability to travel by car negatively impacts economic mobility, safety, and self-worth, and exacerbates the ever-present fear of deportation.

Immigrants who drive are, in some locations, pulled over more frequently than other drivers due of ethnic profiling, and are often forced to pay heavy fines. Not only do the fines have a negative economic impact on those already struggling financially, but such drivers, if found guilty, may have their licenses suspended indefinitely. This creates far-reaching problems for these individuals if and when they do obtain green cards and apply for driver's licenses. Repeat offenses can result in jail time which will adversely affect any attempt to obtain documentation through the legal process.

On the plus side, a valid driver’s license issued in the driver’s home country can be used legally in the United States. Some states require an International Driver’s Permit, a multi-language document. This permit should be issued by the applicant’s home country. Scam artists who sell false permits in the United States, however, are all too common. Immigrants need to be cautioned to be aware of such costly and dangerous swindles. 

Once the driver's license from a driver’s home country expires, the individual is expected to either apply for a driver’s license in his or her state of residence or stop driving altogether. Currently, only 11 states and Washington DC allow undocumented immigrants to apply for a license.  These states are California, Washington, Nevada, Utah, Colorado, New Mexico, Illinois, Maryland, Delaware, Connecticut, and Vermont. Each of these states has its own rules and regulations for individuals obtaining licenses without a social security number. Local attorneys are in the best position to provide guidance about current regulations and should always be consulted for up-to-date helpful advice. 

Monday, September 21, 2015

What happens to a debt after it is discharged bankruptcy?

After a debt is discharged, it is eliminated completely. The debtor is no longer legally required to make payments on the debt. The discharge is a court order that requires that all collection efforts on the debt cease. This is an extension of the automatic stay issued at the beginning of the bankruptcy. The creditor will likely write off this loss in tax filings, so some monies will be saved in this regard.  If the creditor attempts to collect on a debt in bankruptcy, or after it has already been discharged, the court may issue sanctions against the creditor. This is enforced whether the creditor attempts collection by letter, phone call or lawsuit. Not every debt is discharged in a chapter 7 bankruptcy, so it is important to confirm which debts are eligible before asking the court for assistance.

A discharge is typically issued automatically by the bankruptcy court four months after a bankruptcy petition is filed unless a timely objection is filed by a creditor. Once issued, a discharge can only be revoked if a creditor appeals to the bankruptcy court alleging that the petitioner obtained the discharge through fraud or that the petitioner failed to disclose pertinent information to the court, committed one of several acts of impropriety listed in the bankruptcy code or failed to provide adequate explanation of a misstatement in an audit of the case. 

There is nothing in the law preventing a debtor from making payments on a debt that has been discharged, even though there is no legal obligation to do so. If a discharged debt was owed to a friend or family member, however, there is no prohibition on repaying that debt. There are 19 categories of debt that must be paid even after a chapter 7 bankruptcy, including debts secured by collateral, such as homes or cars, most student loans, some tax debts and child support arrears. Individuals should speak to an attorney before declaring bankruptcy to determine if any debts are non-dischargeable in their individual cases.  

Monday, September 7, 2015

Would transferring your home to your children help avoid estate taxes?

Before transferring your home to your children, there are several issues that should be considered. Some are tax-related issues and some are none-tax issues that can have grave consequences on your livelihood. 

The first thing to keep in mind is that the current federal estate tax exemption is currently over $5 million and thus it is likely that you may not have an estate tax issue anyway. If you are married you and your spouse can double that exemption to over $10 million. So, make sure the federal estate tax is truly an issue for you before proceeding.

Second, if you gift the home to your kids now they will legally be the owners. If they get sued or divorced, a creditor or an ex- in-law may end up with an interest in the house and could evict you. Also, if a child dies before you, that child’s interest may pass to his or her spouse or child who may want the house sold so they can simply get their money.

Third, if you give the kids the house now, their income tax basis will be the same as yours is (the value at which you purchased it) and thus when the house is later sold they may have to pay a significant capital gains tax on the difference. On the other hand if you pass it to them at death their basis gets stepped-up to the value of the home at your death, which will reduce or eliminate the capital gains tax the children will pay.

Fourth, if you gift the house now you likely will lose some property tax exemptions such as the homestead exemption because that exemption is normally only available for owner-occupied homes.

Fifth, you will still have to report the gift on a gift tax return and the value of the home will reduce your estate tax exemption available at death, though any future appreciation will be removed from your taxable estate. 

Finally, there may be more efficient ways to do this through the use of a special qualified personal residence trust.  Given the multitude of tax and practical issues involved, it would be best to seek the advice of an estate planning attorney before making any transfers of your property.

Monday, August 17, 2015

Medical Debt & Bankruptcy

My husband and I are facing bankruptcy primarily due to our insurmountable medical debt. Will these charges be forgiven? Or will we still owe a portion of the outstanding balances?

Medical debt is one of the hallmark dischargeable debts in Chapter 7 consumer bankruptcy – and may be totally erased by a successful bankruptcy filing. According to data compiled by the U.S. Census Bureau and the federal bankruptcy courts, medical debt remains the reigning number one cause of bankruptcy in the United States. Fortunately, bankruptcy laws consider medical debt to be a “nonpriority unsecured debt,” meaning it will more than likely disappear at the conclusion of the discharge process – a welcome relief for overburdened debtors, many of whom are dealing with significant health issues as well.

Understanding the debt hierarchy

During the bankruptcy process, the trustee assigned to the file will be required to evaluate the petitioner’s assets and pay off as many outstanding debts as possible. Once an asset profile is identified, the trustee will begin with secured debts, which are those attached to underlying collateral (e.g., home, vehicle, boat). Debtors may choose to walk away from these debts, reaffirm the debt, or redeem the debt. From there, the trustee will require payment of high priority unsecured debts, including taxes or child support obligations. These types of debts are generally not dischargeable, and must be paid regardless of the petitioner’s status in bankruptcy. Lastly, unsecured nonpriority debts are those that are dischargeable in the bankruptcy process, provided the debtor is unable to pay the outstanding balance – and, fortunately, this category includes medical debts.

Dealing with medical debt in bankruptcy

If a petitioner’s available assets are depleted to pay secured or high priority debts, he or she may be able to discharge medical debt in its entirety. If, however, assets remain to put toward an outstanding balance at a hospital or practitioner’s office, the trustee will ensure the petitioner pays as much as possible toward the balance. After all assets and available cash are depleted, remaining nonpriority unsecured debts will be discharged, allowing the petitioner to more on toward a brighter financial future.

Thursday, August 6, 2015

Seven Tips for Negotiating Your Divorce Settlement

Regardless of how long you have been married, negotiating a settlement is the most important part of the divorce process. Although it is no easy task, working with your spouse to arrive at mutually agreed terms of your marital dissolution is easier on your wallet and your psyche. Whatever conditions caused the breakdown in the marriage are likely still present throughout the divorce negotiation, exacerbated by emotions such as anger and fear as you each transition into the next stage of your lives.

However, staying focused on what’s best for your future will serve you well as you navigate these tumultuous waters. Taking your divorce case to trial and letting the court decide what will become of your property or children is rarely in your best interest. Although you may not get everything you hoped for during a settlement negotiation, you will save a tremendous amount of money, time and emotional anguish.

Divorce settlement negotiations involve a degree of both skill and art, both of which can be attained by following a few simple tips. Even if your attorney is doing the negotiating on your behalf, it is important that you are clear regarding your priorities, so you can make decisions that are truly in your own best interest for the future life you are establishing post-divorce.

Negotiating a settlement agreement necessarily involves a certain amount of give and take, on both sides, so keep in mind that you most likely won’t get everything you want. But following the tips below can help ensure you get what’s most important to you.

  • Establish clear priorities.
  • Know what you can give up completely, where you can be flexible and those critical items where you are unable to budge.
  • Be realistic about your options and the bigger picture, so you can be reasonable when you must “give” something in order to “take” something.
  • Stay focused on the negotiation itself, and your future; avoid recalling past resentments or re-opening past wounds. Your divorce settlement negotiation is no place for “revenge” which can ultimately delay your case and cost you thousands in unnecessary legal expenses.
  • If your soon-to-be-ex-spouse becomes emotional or subjects you to personal attacks, don’t take it personally. This may be easier said than done, but it is important to stay focused on your priorities and realize that such “noise” does not get you any closer to a settlement agreement.
  • If you spouse presents you with a settlement offer, consider it carefully and discuss it with your attorney. It may not include everything you want, but that may be a fair trade off in order to finalize your divorce and move on with your new life.
  • If you are negotiating your own settlement agreement, consult with an attorney before you make an offer to your spouse or sign any proposed agreement.

By keeping the focus on your priorities, and avoiding the emotionally-charged aspects of your failed marriage, you can ensure you negotiate a divorce settlement agreement that you can live with.

Monday, July 27, 2015

Estate Planning for the Chronically Ill

There are certain considerations that should be kept in mind for those with chronic illnesses.   Before addressing this issue, there should be some clarification as to the definition of "chronically ill." There are at least two definitions of chronically ill. The first is likely the most common meaning, which is an illness that a person may live with for many years. Diseases such as diabetes, cardiovascular disease, lupus, multiple sclerosis, hepatitis C and asthma are some of the more familiar chronic illnesses. Contrast that with a legal definition of chronic illness which usually means that the person is unable to perform at least two activities of daily living such as eating, toileting, transferring, bathing and dressing, or requires considerable supervision to protect from crisis relating to health and safety due to severe impairment concerning mind, or having a level of disability similar to that determined by the Social Security Administration for disability benefits. Having said all of that, the estate planning such a person may undertake will likely be similar to that of a healthy person, but there will likely be a higher sense of urgency and it will be much more "real" and less "hypothetical."

Most healthy individuals view the estate planning they establish as not having any applicability for years, perhaps even decades. Whereas a chronically ill person more acutely appreciates that the planning he or she does will have real consequences in his or her life and the life of loved ones. Some of the most important planning will center around who the person appoints as his or her health care decision maker and also who is appointed to handle financial affairs. a will and/or revocable living trust will play a central role in the person's planning as well.  Care should also be taken to address possible Medicaid planning benefits.  A consultation with an estate planning and elder law attorney is critical to ensuring all necessary planning steps are contemplated and eventually implemented. 

Monday, July 20, 2015

Student Loans & Bankruptcy: What are the Options?

I am drowning in student loan debt. Is this debt dischargeable in bankruptcy?

Traditionally, student loans were not considered a dischargeable debt under federal bankruptcy laws. However, as national student loan debt has skyrocketed into the trillions of dollars, struggling graduates may be able to escape the burden of four-figure monthly payments by successfully proving severe financial hardship. As well, there are a number of less common avenues through which student loan debt may be discharged, which could be a financial life-saver for those meeting eligibility criteria.

Three-prong undue hardship test

Under current consumer bankruptcy law, there is a three-part test to determine if a student loan is dischargeable based on undue hardship. First, you must prove that, if forced to repay the loan under its minimum payment terms, you would be unable to maintain a minimum standard of living. While the phrase “minimum standard of living” has not been officially defined in the bankruptcy code, it is generally considered to mean the financial ability to maintain adequate housing and meet daily needs for the borrower and his or her dependents.

Second, the borrower must show that the inability to maintain a minimum standard of living is not temporary in nature, and is likely to continue throughout the duration of the loan repayment period. Lastly, discharge may be possible if you have made a true good faith effort to repay the loan prior to filing for bankruptcy – which means a period of at least five years.

Known as the Brunner test, this three-prong analysis looks for poverty, persistence, and good faith – and may be a good option for borrowers who have tried, but are simply unable, to repay that those looming and unrelenting education debts.

Other options

As a debtor, there may be other options for avoiding student loan repayment, primarily if your alma mater  is involved in any kind of investigation for fraud or consumer deceit. In some instances, students have earned relief from some or all of their student loans by successfully highlighting their school’s false promises or exaggerated graduation/employment rates – thereby triggering a consumer protection or breach of contract action.

Monday, July 6, 2015

The Two Paths to Asylum

“Give me your tired, your poor,

Your huddled masses yearning to breathe free,

The wretched refuse of your teeming shore.

Send these, the homeless, tempest-tost to me,

I lift my lamp beside the golden door!”

This, according to Emma Lazarus’s famous poem “The New Colossus,” is what the Statute of Liberty cries to the world. It is a reminder that America opens its doors to the most desperate of immigrants, those whose very life is threatened if they return to their home country.  In this day and age many of these immigrants are refugees seeking asylum.

A refugee is “someone who is unable or unwilling to return to and avail himself or herself of the protection of his or her country of nationality or, if stateless, country of last habitual residence because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”

There are actually two paths to asylum self-proclaimed refugees can take, known as affirmative and defensive asylum respectively. Which path is appropriate depends largely on the filer’s current immigration status.

Affirmative asylum is available to refugees who have been physically present in the United States for less than a year, regardless of their immigration status. An application for affirmative asylum is filed directly with U.S. Citizenship and Immigration Services (USCIS). If a self-proclaimed refugee has been physically present in the United States for more than a year, he or she can still apply for affirmative asylum if he or she can show that circumstances that materially affect his or her eligibility for asylum have changed, or that extraordinary circumstances delayed his or her filing. He or she must apply for affirmative asylum within a reasonable amount of time given the circumstances.

Defensive asylum, as the name suggests, is a defense to deportation. It is filed with the immigration judge presiding over the self-proclaimed refugee’s removal proceeding.

The key to success in both affirmative and defensive cases is proving the applicant is truly a refugee as defined above. How the evidence is presented depends on the type of asylum.

Affirmative applications for asylum are heard by USCIS Asylum Officers. The process is a non-adversarial interview. Defensive applications are heard by Immigration Judges in adversarial (court-like) proceedings.

If you think you are a refugee, you should contact an experienced immigration immediately in order to apply for asylum.

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