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Welcome to our firm's Blog. We will comment on legal related issues and opinions that are happening in Iowa and around the nation in regards to family law Please stay tuned for more. CUSTODY : SIBILING CONTACT FAVORED - WHETHER HALF OR WHOLE - COURT OF APPEALS SAYS CHILDREN SHOULD STAY TOGETHER! The Court of Appeals, in In Re: Marriage of Rixen, is still an avid supporter of the concept that siblings, regardless of whether they are from the same parents or not, should only be separated for the most compelling reasons. (December 28, 2006). JOINT PHYSICAL CARE - DOES THE JUDGE HAVE TO AWARD IT? The Iowa Code, as the courts have stated before, does NOT establish a presumption that merely because a party asks for joint physical care (50/50) that it has to be awarded. The Court of Appeals again stated in In re: Marriage of Crosser that the law is merely a statement that joint physical care is no longer unfavorable but that it is now a viable option if it is truly in the child/ren's best interest and the parents can cooperate and communicate. The Court again says that the 50/50 arrangement is NOT, even though now an option, the preferred or presumed custody arrangement. WANT JOINT PHYSICAL CARE? "COOPERATION AND COMMUNICATION" APPEAR TO BE KEY!: The Court of Appeals, in Fogelman v. Anderson , denied establishment of a joint physical care arrangement in this paternity action stating that it was not in the best interest of the minor child to be placed in the joint physical care of the parties, "in view of his parents' difficulty in cooperating and communicating with one another". Cases appear to be fact specific on this issue. (January 31, 2007). THE SUPREME COURT WEIGHS IN! The Supreme Court, in In Re: Marriage of Hansen , has weighed it with its thoughts on joint physical care. The Supreme Court restated that joint physical care is not the presumption, as a matter of fact, it appears not to favor same. Continuinty of care and the best interest of the children is key. The Supreme Court appears to be reverting back to a "primary caregiver" analysis. (October 12, 2007) VISITATION : IF THE CUSTODIAL PARENT GIVES SOME ADDITONAL VISITATION TO THE NON-CUSTODIAL PARENT CAN PHYSICAL CARE BE MODIFIED? THE COURT OF APPEALS SAYS NO!: The Court of Appeals, in Fourney v. Brinley , held that physical care decisions are entered into with an eye toward ordinary and reasonable changes. Natural occurences which could be forseen by the court are not sufficient to justy modification... The allowance of some extra visitation by a physical caretaker is an ordinary and natural occurence that was foreseeable when the Order was entered. Modification of physical care denied. (January 31, 2007). TAX ISSUES : HEAD OF HOUSEHOLD FILING STATUS: It may be possible, when the parties have more than one child, that BOTH be considered "head of household" for tax purposes relative to one child. Certain criteria must be met and appropriate language must be placed in the decree to achieve this result. PROPOSED LEGISLATION : House Study Bill 3 : Proposed legislation would allow a party to request payment of, and the court MAY award, his/her attorney's fees in an action to establish and/or modify paternity actions.
POST SECONDARY LEGISLATION : The Iowa Legislature is looking at language to authorize the court to order a post secondary education subsidy for children of UNMARRIED parents! (January 30, 2007)
BANKRUPTCY DECISIONS Marrama v. Citizens Bank of Massachusetts , 127 S.Ct. 1105 (Feb. 21, 2007). The Supreme Court held that a chapter 7 debtor does not have an absolute right to convert his case to chapter 13. The 5-4 majority concluded that a chapter 7 debtor whose case could be converted or dismissed for cause under 11 U.S.C. Section 1307(c) had forfeited the right to proceed under chapter 13. In re: Pyatt , 486 F.3d 423 (C.A.8 May 23, 2007). The Court of Appeals held that:
(1) funds that were in debtor's checking account at time he filed for chapter 7 relief, and that were removed from account only postpetition, when debtor's bank honored checks which he had written prepetition, were included in "property of the estate";
(2) debtor had "control" over funds, of kind sufficient for trustee to compel turn over of these funds by debtor; but
(3) debtor, having lost all control over money that was removed from his checking account when his prepetition checks were honored postpetition, could not be subject of turnover motion. In re Kibbe , 361 B.R. 302 (1 st Cir. BAP Feb. 20, 2007). The Bankruptcy Appellate Panel of the First Circuit affirmed the denial of confirmation and held that the starting point for projecting disposable income was not current monthly income, as defined by the Code, but rather current income, as reflected on Schedule I, less amounts specifically excluded from the statutory definition of current monthly income, such as social security. In re Osborn , 363 B.R. 72 (8 th Cir. BAP Feb. 23, 2007). The Bankruptcy Appellate Panel of the Eighth Circuit considered whether debtors may surrender 910-vehicles in full satisfaction of the creditor's claim. The Court held that the "hanging paragraph" precluded bifurcation of purchase-money motor vehicle lender's claim, not only in cramdown context so as to prevent debtors from cramming down plan by paying creditor only the value of motor vehicle securing its claim, but also in event that debtors elected to surrender motor vehicle securing creditor's purchase-money claim.
House File 2044 is a bill that would direct that 15% of child support paid by either parent must be set aside in a separate fund and invested in a well-balanced financial portfolio to be reserved for the child when he/she turns 25 years old, unless the Court determines otherwise. Watch to see how this bill progresses through this legislative term. (February 1, 2008)
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CHAPTER 7 BANKRUPTCY The Bankruptcy Abuse Prevention and Consumer Protection Act became effective in October of 2005. Since the passage of this law, it has been rumored that people cannot file for bankruptcy or that filing bankruptcy is too difficult to be considered a good option for consumers with financial difficulties. However, these rumors are false. Bankruptcy is still a viable option for restructuring or eliminating debt, preventing foreclosures and repossessions, and giving consumers a fresh start. This article is intended to give general information regarding a few of the issues involved in a Chapter 7 bankruptcy. It is not a substitute for discussing your specific situation with your legal counsel. Eligibility/Credit Counseling To be eligible to file Chapter 7 bankruptcy, the debtor must be an individual, a partnership, or a corporation or other business entity that resides or has a domicile, place of business, or property in the United States. Relief is available under chapter 7 of the Bankruptcy Code irrespective of the amount of the debtor's debts or whether the debtor is solvent or insolvent. An individual cannot file bankruptcy, if during the preceding 180 days: - a prior bankruptcy petition was dismissed due to the debtor's willful failure to appear before the court;
- a prior bankruptcy petition was dismissed due to the debtor's willful failure to comply with orders of the court; or
- the debtor voluntarily dismissed a previous case after creditors sought to recover property upon which they held liens.
In addition, an individual cannot file bankruptcy unless s/he has, within 180 days before filing, received credit counseling from an approved credit counseling agency. The credit counseling agency must be approved by the United States Trustee's Office and counseling must be offered regardless of the debtor's ability to pay. The counseling may be given in person, over the telephone, or over the internet. If a debt repayment plan is developed during the credit counseling session, a copy of that plan must be filed with the court. There are limited exceptions to this credit counseling requirement in emergency situations or if the debtor is disabled, incapacitated or in active military duty in a combat zone. Automatic Stay Immediately upon the filing of a bankruptcy case, an "automatic stay" goes into effect which stops most collection activities against the debtor or the debtor's property. The stay arises by operation of law and requires no judicial action. As long as the stay is in effect, creditors generally may not initiate or continue lawsuits, foreclosures, repossessions, wage garnishments, or even telephone calls demanding payment. Creditors are notified of the bankruptcy filing and the automatic stay by the bankruptcy clerk's office. The filing of a bankruptcy petition does not stay certain types of actions, such as criminal proceedings; paternity or child custody actions; the collection of alimony or child support; or police or regulatory actions. As it pertains to specific property, the automatic stay continues until that property is no longer property of the debtor's bankruptcy estate. In general, the stay continues until the case is closed, dismissed, or the debtor's discharge is granted or denied. However, the duration of the automatic stay may be limited if the debtor has previously filed bankruptcy. Creditors may seek to have the automatic stay terminated or modified. A creditor may request permission to act without the restraint of the stay if the creditor's property is not being adequately protected or if the debtor does not have equity in the property and the property is not necessary for the debtor's reorganization. In addition, a creditor may ask for relief from the stay if the creditor believes the debtor's bankruptcy was not filed in good faith. If a creditor violates the automatic stay, the debtor may be able to recover actual damages, including costs and attorney's fees, and punitive damages. Reaffirmation/Redemption When a debtor files bankruptcy, the debtor must state his/her intentions with regard to secured debts. The debtor may choose to reaffirm, redeem or surrender the property. The debtor may reaffirm the debt by entering into a reaffirmation agreement with the creditor. The debtor agrees to remain liable for the debt and to pay all or a portion of the debt that would otherwise be discharged. The creditor agrees not to repossess the property as long as the debtor continues to pay the debt. To be valid, the debtor must sign the written agreement and file it with court before the discharge is entered. The Bankruptcy Code requires that reaffirmation agreements contain extensive disclosures and if the debtor was represented by an attorney in the negotiation of the agreement, the attorney must make certain certifications. The Bankruptcy Court then reviews the reaffirmation agreement and may decide not to approve the agreement. However, the debtor may voluntarily repay any debt whether or not a reaffirmation agreement exists. The debtor may redeem certain personal property if the property is intended primarily for personal, family, or household use and if the property secures a dischargeable consumer debt. In addition, the debtor must have claimed the property exempt or the trustee must have abandoned the property. To redeem property, the debtor must pay the creditor the property's market value at the time of redemption. Therefore, redemption requires a lump sum payment, not installments. Finally, the debtor has the option of surrendering the property and discharging his/her remaining obligations to the creditor.
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The Law Offices of Telpner, Peterson, Smith, Ruesch, Thomas & Simpson
25 Main Place, Suite 200
Council Bluffs, IA 51503
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Phone: (712) 325-9000
Toll Free: (888) 223-3323
Fax: (712) 328-1946 The Telpner Peterson Law Firm, located in Council Bluffs, Iowa, represents clients throughout southwest Iowa in communities such as Missouri Valley, Logan, Harlan, Atlantic, Glenwood, Red Oak, Avoca, Carter Lake, Sidney, Shenandoah, and Clarinda, and in Omaha, Nebraska. Pottawattamie County • Harrison County • Shelby County • Cass County • Mills County • Montgomery County • Audubon County • Fremont County • Page County
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