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Joe Jurecki
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Spousal support | Penalties for late payment dischargeable in bankruptcy Support payments are not dischargeable in bankruptcy. But what about penalties imposed for failure to pay support? The 1st Circuit Court of Appeals held in a ruling released on November 12, 2009 that $50 per day penalties owed by the husband because his spousal support payments were late are not "in the nature of support." [Note the penalties had accumulated to some $75,000+ over a period of years.] Thus the former husband could discharge them in bankruptcy. According to the court: "The term "domestic support obligation" ("DSO") is a newly defined term in the Bankruptcy Code, as updated by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA"). See Pub. L. 109-8, 119 Stat. 23 (2005). As relevant here, a DSO is defined as ' . . . a debt that accrues before, on, or after the date of the order for relief in a case under this title, including interest that accrues on that debt as provided under applicable nonbankruptcy law [owed to] a former spouse [and that is] in the nature of alimony, maintenance, or support . . . without regard to whether such debt is expressly so designated. 11 U.S.C. § 101(14A).' " Pursuant to the statute, for an obligation to a former spouse to be considered a DSO, it must actually be in the nature of support. This issue is one of federal bankruptcy law, and not state law. The 1st Circuit Court disagreed with the lower bankruptcy court, which had said that the $50/day penalty "looks, smells, and feels too much like attorneys' fees collecting alimony and support payments, which have historically . . . been treated as in the same nature" as alimony. Rather, the 1st Circuit concluded that [the ex-wife's] claim is a general unsecured claim not entitled to priority status and can be discharged in [the ex-husband's] bankruptcy. See 11 U.S.C. §§ 523(a)(15), 1328(a)(2). http://www.scribd. com/doc/22941950 /In-re-Smith
I have been watching this case for sometime now and will see if we can get it added to the MI Supreme court filing. This should add weight to the issue of inability to pay vs strict liability in the parks, likine, and harris cases
I see some of the points in this however I see it a bit different with the mass of information out there on the net. I know people who are great at working on old cars yet they do not have the technology to scan the new ones so they often take a car that needs work to a shop to get it diagnosed for a small fee then they take that valuable information and fix it themselves since doing the work wasn't the issue. I think that this might be somewhat along those lines in my mind. Many lawyers will give you a free intial visit and then go into great detail of the things they would do or file on your behalf. With that valuable information you can do a simple google search and likely find the same documents ready to edit to your needs. What is ironic is that you can sue for malpractice yet so far you are not able to claim ineffective counsel in our family courts since you have no RIGHT to counsel. I took this issue to the COA in my own case yet they denied it and I had other fish in the fryer to proceed with and let this issue die. In my mind you hire a lawyer for a few reasons. 1. They have a record of fighting a good fight on behalf of thier client which means they either do thier homework or are respected/ connected to the local judges. 2. They have a fluid style of writing that can wrap both the legal and technical issues of the case into one. This is a gift you have or you do not from my experience. If reading your brief is dry you will likely lose half of your arguements no matter how right they are. 3. Probably the most important I would think is for piece of mind. I would not go into any court without some basic knowledge or homework on my own behalf so that way I know enough to keep my lawyer honest and working for me. Even with that basic knowledge there are things that someone who has been in any job for a period of time will do because its second nature to them by now and they keep up to date enough to pull a rabbit out of the hat if needed. Most of the time if you run into something unexpected and you have a good lawyer on your side you can at least minimize the damage or dig enough of a footing to revisit the issue on appeal by preserving the arguements. Any fool can file most anything this day in age but the price of knowing its right far outweights having to revisit the issue after time has diluted your stance As for malpractice the time lines are very tight and its very expensive
What are the options and any built in safety measures for the rights of the father or extended family in a drop off situation?
If you can not afford the filing fees then you have the option to file a motion to waive fees for indigence. More lawyers should be using this as well with thier poor clients instead of just paying the fees have them fill out a simple 1 page form.
I hope they are aware of the powery v wells case to sight in thier brief as this case set the ground work to stop these disruptive moves in thier tracks when both parents are activily involved in raising the children
Guess they have never heard of the Troxel case and the long list of supporting caselaw against them in this country
I also do not think it will stand if challenged in the federal courts and have brought this up to a few of the people who were fighting for this
Congrats on the recognition. I am glad the trackers see this as a valuable site as well. I often post links on my various sites to your articles since the issues in the realm of family court are vast and getting up to date info is criticle when fighting for your children
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Dec 6, 2009