Bankruptcy
1. Will filing a bankruptcy affect my credit?
Filing for bankruptcy will negatively impact your credit score, and will remain on your credit report for 10 years after you have filed. Even after the bankruptcy has been removed from your credit score, it can still be found in the public record.
2. What are the different types of bankruptcies?
Chapter 7 (liquidation) – Where the Trustee liquidates all property that is not protected and pays any proceeds to creditors.
Chapter 13 (individual reorganization) – Where the Debtor sets up a payment plan with the Trustee that lasts for a period of 3 to 5 years. The Trustee then pays the creditors from these payments.
Chapter 11 (business reorganization) – Operates similar to a chapter 13, but is used by businesses and not individuals.
Chapter 12 (family farmer/fisherman reorganization) – Operates similar to a chapter 13, but is available only to farmers and fisherman, who are still operating and generating income from farming and fishing.
Chapter 9 (municipality reorganization) – Operates similar to a chapter 13, but is available only to municipalities, such as towns and counties.
There are benefits and disadvantages to filing for bankruptcy under each Chapter; you should consult a bankruptcy attorney before deciding which Chapter best suits your current interests.
3. How do I qualify to file a chapter 7 bankruptcy?
The first factor to look at when qualifying for a chapter 7 is the income of the Debtor(s). The income must be below the median family income for a family of that size in whatever state the Debtor(s) is filing. In Minnesota the median family income is as follows:
1 Person – $47,122
2 People – $62,363
3 People – $75,350
4 People – $87,319
If your household income exceeds the above amounts, you may still qualify for a Chapter 7 under the “means test.” This is a complicated procedure, and you should consult an experienced bankruptcy attorney before proceeding with a Chapter 7 bankruptcy under the means test.
4. How long does a bankruptcy usually take?
The length of a bankruptcy will vary depending on the Chapter under which you file, and whether you have any property that is not protected. Some bankruptcies may only take a few months to complete while other may exceed 5 years. An experienced bankruptcy attorney may be able to provide an approximate time for the length of your bankruptcy by looking at the specific facts of your case.
5. Will I have to go to court?
Not necessarily. However, every Debtor must attend a Meeting of Creditors, where the Trustee will put the Debtor under oath and the Debtor must testify as to the information listed in his/her bankruptcy petition.
6. How does filing bankruptcy affect my spouse?
Married parties may choose to file jointly, separately, or one may file and the other may choose not to file. If one spouse files and the other does not, then the bankruptcy filing should not be listed on the credit score of the non-filing spouse and it should not adversely affect that spouses credit. However, the non-filing spouse must still pay for any joint debts, such as a mortgage or a joint credit card.
7. What debts are not erased by a bankruptcy?
Spousal and child support payments will still need to be paid. In addition, tax debts and school loans can only be erased under limited circumstances. Please see an attorney to see if your tax debts or student loans qualify to be discharged.
8. Will a bankruptcy save my house from going into foreclosure?
A bankruptcy can temporarily halt a foreclosure proceeding. However, if the mortgage payments are still delinquent then the mortgage company can still foreclose the property either after the bankruptcy is complete or by asking permission from the bankruptcy court. Chapter 13 bankruptcies can be used by a Debtor to help catch up on late mortgage payments in order to prevent a house from being foreclosed.
9. Will I lose my home or other property in a bankruptcy?
The bankruptcy code allows a Debtor to save or “exempt” a dollar amount in certain property. These exemptions are usually enough to prevent a Debtor from losing certain property of the Debtor, such as cars, jewelry, furniture, clothes, and a residential property. However, it is best to consult with a bankruptcy attorney to determine if all of your property is indeed protected.
10. Will a bankruptcy prevent creditors from calling me?
11. What is the waiting period for filing another bankruptcy?
The waiting periods between bankruptcy filings varies depending under which chapter you are trying to file a bankruptcy and under what chapter your previous bankruptcy was filed. An individual must wait 8 years after receiving a “discharge” in a chapter 7 bankruptcy before filing another chapter 7 bankruptcy. For additional waiting periods please consult a bankruptcy attorney.
Divorce/Child Custody
1. How long does a divorce take?
The length of a divorce depends on the parties, property, and issues involved. Divorces that contain significant property or custody issues can last a year or longer.
2. Can divorces settle?
Yes, if both parties agree to the property division, child custody, and all other matters they can enter into a “Marital Termination Agreement” or file a joint divorce, which is filed with the court in lieu of going to court.
3. My spouse was abusive and/or cheated on me; do they really get half of my property?
Minneosta statutes provide “a just and equitable division of marital property of the parties without regard to marital misconduct.” This means that regardless of one spouse’s bad deeds, the property still needs to be divided equally. However, that spouse’s conduct can be taken into consideration regarding custody.
4. Does my child get a say in where he/she will live?
While the court may give some thought to the child’s preference, usually a child must be 15 or 16 for a court to give a child’s wishes serious consideration.
5. What is the difference between physical and legal custody?
Physical custody refers to where to child will live and making day to day decisions for the child. Legal custody refers to making major decisions for the child, such as education, religion, and health care.
6. If I have been granted custody of my children, can I move out of state?
In order for a parent with custody of a child to prove out of state (with that child) the parent must first get permission from the court. This is a very difficult thing to do if the other parent is opposed to the move, and court will balance several factors, such as the reasons for the move and the child’s relationship with the non-moving parent.
7. Can my spouse/ex-spouse withhold visitation for not paying child support?
No, failure to pay child support is not a valid reason for withholding visitation.
I owned a home before I was married; does my spouse have an interest in it?
8. Can I sell property or cancel insurance during a divorce? Can my spouse?
No, once the divorce petition is served on a party, both parties are legally prevented from cancelling insurance or selling property. If a spouse does this they can be in contempt of court. However, there are certain instances where a party is allowed to sell certain property. If you believe your spouse is attempting dispose of marital property you should immediately seek an attorney to see if your spouse is in contempt.
9. Can I change my name in a divorce?
Yes, a party who has changed his/her name during a marriage may change it back to their previous name. However, a party cannot force the other spouse into changing their name.
10. Can my spouse and I use the same attorney?
Attorneys are prevented from representing two clients who have adverse interests; therefore, you and your spouse should have different attorneys at different firms.
11. If I have an attorney, does my spouse have to get an attorney or vice versa?
No, both parties do not need to be represented in a divorce. However, it is important to remember that if your spouse is represented in a divorce his/her attorney is looking out for your spouse’s best interests, and not yours.
DWI
1. What is the legal limit in Minnesota?
In Minnesota a driver must not have a blood alcohol level (BOC) of .08 or more. If the driver’s BOC is above .16, there might be additional consequences for that driver. In addition, Minnesota law provides zero tolerance for underage drinking, therefore a minor with any alcohol in their system may be charged with a DWI.
2. What is a field sobriety test?
Once you have been pulled over and the police officer has a reasonable suspicion that you are under the influence, he may ask you to take some field sobriety tests. Some of these tests include the balance test, walk a straight line, an initial breathalyzer, etc. If you fail the field sobriety test(s) this will usually give the police officer probable cause to arrest you and ask you to submit to a chemical test.
3. What is a chemical test, and do I have to take one?
Once an officer has probable cause to arrest you for driving under the influence, the officer will ask you to submit to an official chemical test, this can be a blood test, breathalyzer, or urine test. In MN it is a gross misdemeanor if you refuse this test, which will result in the loss of your license for a year.
4. Can I request a separate test?
Yes, Minnesota law allows you to request a separate test at your own expense. This can be a wise choice, as sometimes the tests provide different results and may help you build a defense to any DWI criminal charges.
5. Can my license be suspended?
Yes, in fact, your license will be automatically suspended by the DMV upon notice of a failed chemical test or refusal to take a chemical test. There is a very limited time frame to appeal or fight this suspension, so you should immediately seek an attorney on possible ways to prevent your license from being suspended.
6. What is the punishment for drunk driving?
This depends on if there are any aggravating factors, such as if your BOC was over .16 or if you have any prior offenses. Generally, a person’s first offense will result in a Fourth Degree DWI conviction, which is a misdemeanor punishable up to 90 days in jail (although jail time is not mandatory) and a $1,000.00 fine. The more DWIs a person is convicted of the harsher the punishment.
7. Can I plead to a lesser offense?
Yes, the district attorney may plead you down to a “wet reckless” or just reckless driving. Whether or not the district attorney will allow you to plead to a lesser offense will depend on if there are any aggravating factors, such as if you have any prior offenses.
8. If I plan to plead guilty, do I need an attorney?
Yes, there are several defenses that an attorney might be able to bring up that will encourage the district attorney to plead the Defendant to a lesser offense. In addition, an attorney may be able to help you lessen the affects of the possible collateral consequences that attach when a person is convicted of a DWI.
Real Estate
1) I’m refinancing, why do I need title insurance?
When you refinance you are obtaining a new loan, even if you stay with your original lender. Your lender will usually require a new title search and Loan Policy to protect their investment in the property. You will not need to purchase a new Owner’s Policy; the one you bought at closing is good for as long as you and your heirs have an interest in the property.
Even if you recently purchased or refinanced your home, there are some problems that could arise with the title. For instance, you might have incurred a mechanics lien from a contractor who claims he/she has not been paid. Or you might have a judgment placed on your house due to unpaid taxes, homeowner dues, or child support for instance. The lender needs reassurance that the title to the property they are financing is clear.
Ask if you qualify for a “refinance” rate, sometimes called a “reissue” rate. These rates are not available in every state, and you might have to meet some criteria to be eligible, so be sure to ask.
2) I’m buying a newly built home, do I need title insurance?
Construction of a new home raises special title problems for the lender and owner. You may think you are the first owner when constructing a home on a purchased lot. However, there were most likely many prior owners of the unimproved land. A title search will uncover any existing liens and a survey will determine the boundaries of the property being purchased. In addition, a builder may have failed to pay subcontractors and suppliers. This could result in the subcontractor or supplier placing a lien on your property. Again, lenders want to be sure the property has clear title, and they are insuring the correct property. Purchasing an Owner’s Policy will protect you against these potential problems and pay for any legal fees involved in defending a claim.