Commonly Asked Questions
No. There’s a common misconception that children can choose which parent to live with when they turn 12. That is not the case. However, under Pennsylvania’s Custody Factors, one of the factors that a court must consider when making a custody determination is “the well-reasoned preference of the child, based on the child’s maturity and judgment.” It is up to the court as to how much weight to give this factor, and it is not necessarily the “deciding factor.”
Common law marriage was abolished in Pennsylvania as of January 2, 2005. That means that no new common law marriages can be entered into as of that date. However, Pennsylvania still recognizes common law marriages that were entered into before January 2, 2005. It is important to note that there is no specific length of time that you have to live together to establish a common law marriage. To establish a common law marriage, there must have been an exchange of words in the present tense expressing an intent to be married (“You are my husband/wife/spouse.”), and it must have occurred on or before January 1, 2005.
No. At this time, while Pennsylvania law allows a single person to adopt a child, it does not allow a person who already has a child with someone else to legally make themselves a single parent. If you wish to terminate the parental rights of the other party, there must be someone else who is willing to adopt in their place. This is true even if the other biological parent would agree to terminate their rights. The Pennsylvania Supreme Court has further specified that the person who is adopting in place of a parent cannot be a grandparent. For example, Mother cannot terminate Father’s rights so that Grandfather can adopt in Father’s place. Put another way, Mother and Grandfather cannot legally be the child’s parents together.
A regular bankruptcy case filed by an individual, or husband and wife, is under Chapter 7 of the Bankruptcy Code. Most debts that you have at the time you file are “discharged” or forgiven. You keep “exempt” assets/property, which for most means you do not lose any assets/property that you own when you file.
A Chapter 13 is a personal reorganization, which can include a small business, filed when circumstances are such that a Chapter 7 would not work for you.
A Chapter 11 is a business reorganization for medium to large businesses.
First Reason. Most Chapter 7 cases filed (about 95%) are classified as “no asset” cases, which does not mean the people filing have nothing, but that their assets (real estate, contents of their home, bank accounts, etc.) are worth less than the limits imposed by law (it is considered “exempt property”). But if you own assets and their value is more than what the law lets you keep, then you might file a Chapter 13 in order to keep the assets you might lose in a Chapter 7. (If you don’t care about those assets, you file a Chapter 7.)
Second reason. If you are behind on your mortgage, and need time to catch up, and want to keep your house, then you might file a Chapter 13.
Third reason. If your household income is “too high”, as defined by the bankruptcy law, you might be forced to file a Chapter 13, and not allowed to file a Chapter 7.
In a Chapter 7 case four to six months is the average time for the case to take.
In a Chapter 13 case, most plans are either for three years or five years.
In a Chapter 7 case almost all of your debt is discharged-eliminated. The exceptions, and debts which you will continue to have to pay, are alimony and child support, nearly all student loans, and most taxes (income taxes more than three years old, for which timely tax returns were filed, can be discharged/forgiven). But bankruptcy does not eliminate a lien or mortgage that you agreed to. For example, when you file bankruptcy your car loan is forgiven-you don’t have to pay it-but the lien on the certificate of tile to the car loan company is not eliminated. Unless the payments are made, the loan company can take the car, but they cannot make you pay anything. So if it is a car you want to keep, you continue to make your payments. If it is a car you don’t care about, you let them take it, and stop making the payments.
Filing a bankruptcy petition generally stops most lawsuits that are pending, and stops most new ones from being filed. (It does not stop criminal cases or fines.)
In a Chapter 13 filing a bankruptcy petition also stops most lawsuits, including any mortgage foreclosure action or efforts by a finance company to take your vehicle. It may give you up to five years to catch up on past due payments on your house or vehicle in a plan your propose. There are legal requirements for a Chapter 13 Plan which we will discuss with you when you come in for your free consultation.
In our office we give you the bottom line price of attorney fees and costs. The Court filing fee is approximately $300, and some miscellaneous fees can be as much as an additional $100. But the price we quote you, includes attorney fees and all costs. The only exceptions are rare cases, which are specified in our written fee agreement, a copy of which we give to you at the free initial consultation.
In most cases no, you will not lose your home. The answer depends on how much equity you have in your home. The equity of your home is its value, less any valid liens (mortgages, taxes, judgement liens) on the house. In most cases the law allows you to keep your home if the equity is $24,000 or less, $48,000 is you are married. If the equity is larger, you can still keep your house if you can pay the difference (the value over the exempt amount), or if you file a Chapter 13 Bankruptcy Case.
Yes, everything valued and listed in the petition can be exempted and kept by you. If you don’t list it, you run the risk of losing it and/or having your bankruptcy petition dismissed. You are required to list all of your assets (property) and all of your debts (loans).
Before you file bankruptcy wage garnishment is allowed for only a few debts: child support and alimony; taxes; student loans. After you file bankruptcy, and while your case is pending, most wage garnishments will end (but not child support or alimony).
No. Jail for non-payment of debts is prohibited by our Constitution. You can only go to jail for intentionally violating a court order. So if there is a court order for you to pay child support, and you have the ability to pay, and refuse, then you can go to jail. But if you owe a bank thousands of dollars and refuse to pay a court judgement stemming from a lawsuit, they cannot put you in jail.
There is no fixed rule, and it depends on the type of financial institution. Most banks will not give you a loan for five years after you file. Credit unions, however, if they were not listed as a creditor in your bankruptcy petition, do not follow that rule and will make loans to qualified borrowers.
If you list a creditor in your bankruptcy petition, the credit card is almost always cancelled by the company. And you are required to list all credit cards debts if you are carrying a balance. If you have a card(s) for which you pay the amount due in full each month, or have no balance, it is up to the credit card company to decide if they will let you keep your account open.
Most deposit agreements with banks give them the right to “set off” any debt from any deposits you have. So if you are behind on a loan, or if you file bankruptcy, they can take every penny from your bank accounts and apply it to their loan. That is why you should not keep your money in bank if you owe that bank money.
If you reaffirm a debt it means you agree to pay it, even though you have filed bankruptcy and your other debts are discharged. Court approval is needed. It is usually a very bad idea to reaffirm a debt.
You are required to list all of your debts, all of your creditors, as of the date your bankruptcy petition is filed. If you owe your attorneys any money, they must be listed, and then when you file you do not have to pay them. As a consequence, in all Chapter 7 bankruptcies, the full fee must be paid before the case is filed. (This rule does not apply to Chapter 13 cases.)
A preference is a special payment you make to a creditor, a payment which is not a regular monthly payment. It also includes payments made to family members or close friends within a year of filing your bankruptcy. If you pay back money you borrowed from your family, and not the other creditors, that is “preferring” them over the others. In that situation the person paid can be sued to give back the money, which is then divided equally among all of your creditors. Payments made after you file your bankruptcy case are not preferences. So wait to pay back your family after you file; do not make payments before you file.
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Kayden Vaporis and Associates is a full-service law firm based in Indiana, Pennsylvania, the seat of Indiana County. Our office at 737 Water Street is just a brief minute’s walk from the courthouse.
We have attorneys on our roster who specialize in bankruptcy (the best in the county) and all types of family law, but in particular adoptions, and contract experts to handle Estate Planning, Wills and Probate. No matter the case, we can tackle it.
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The Attorneys at Kayden Vaporis and Associates have deep know-how of Western PA court systems making them the best lawyers to hire when you need experience to fight on your side.