5 Common Individual Bankruptcy Myths

Facts v Myths BankruptcyBelow are five of the most common reasons people give for reasons as to why they think they have to avoid filing bankruptcy when their lives are in financial turmoil.

People in financial distress commonly will delay or not seek relief under the United States Bankruptcy Code, due to common myths and misperceptions.  As a result, such persons and their families continue to suffer needlessly, and in many cases, make their situation worse by delaying or not filing bankruptcy.

1. I am married, and so my spouse has to file bankruptcy with me. 

False.  In many cases, it may make sense for both spouses of the marriage to file bankruptcy jointly, but there is no legal requirement that you have to do so.  In fact, there are situations where it may make more sense for only one spouse to file bankruptcy, such as when all of the debt or a vast majority of the debt is in one spouse’s name only.

2. A bankruptcy filing will stay on my credit report forever.

False.  Under the Fair Credit Reporting Act, credit reporting agencies may not report a bankruptcy case on a person’s credit report after 10 years from the date the bankruptcy case is filed.  A Chapter 13 bankruptcy case may be removed from reporting on your credit reports after seven years, according to the policies of the members of the Associated Credit Bureaus, as an effort by them to persuade individuals to file a Chapter 13 bankruptcy rather than a Chapter 7 bankruptcy.


3. I will not be able to obtain credit after filing bankruptcy.

False.  Many debtors start receiving credit offers very shortly after they received their bankruptcy discharge of debts. This includes credit cards and auto loans. Initially, the terms of the loans or credit may result in a higher than the average interest rate, lower credit limit, or other less than favorable terms; but assuming his or her credit is maintained, a debtor discharged in bankruptcy can return to receiving more commercially reasonable credit terms, including housing loans after a few years.

4. My tax debts to the IRS can never be discharged in bankruptcy.  

False.  While generally speaking, tax liabilities cannot be discharged in bankruptcy, under certain circumstances, older personal income taxes that have not been paid for a period of time after filing an income tax return can be discharged.  Otherwise, tax liabilities can be paid in full under a Chapter 13 repayment plan, over a period of time of up to 60 months.

5. You lose everything if you file a personal Chapter7 bankruptcy.

False.  A Chapter 7 bankruptcy is referred to as a bankruptcy liquidation, which can result in certain assets of a debtor having to be turned over and liquidated in the bankruptcy.  However, certain assets are exempt from bankruptcy proceedings and allowed to be retained by the debtor.  For example, individual retirement accounts and certain qualified retirement plans that have a value of $500,000or less are exempt for each debtor in Nevada.  Equity in a debtor’s primary residence can be exempt up to $550,000 in Nevada.  Nevada also allows each debtor to retain a vehicle with equity value equal to or less than$15,000 and household furniture equal to or less than $12,000.  Such valuations are determined by the current fair market value of the asset, namely, the reasonable market price that a debtor could obtain for the asset if the debtor were to sell it.  Nevada law also allows for other exemptions to protect certain other assets from bankruptcy.

Instead of doing nothing or needlessly delaying and making matters worse for themselves, people with acute financial problems should not hesitate to contact a bankruptcy attorney to ask questions and explore options available to them both in and outside of bankruptcy. An informed bankruptcy lawyer can be an excellent tool to assist one in navigating the turbulent waters during times of financial distress and confusion.

5 Steps for a Successful Divorce Mediation

Mediation is emerging as the procedure of choice for couples hoping to obtain closure of their divorce issues without engaging in the time consuming, emotional and costly litigation process. However, mediation is not for everyone and there are definitely several requirements to assure its success.  If all of the ingredients for a successful mediation are not present, mediation can sometimes be as time-consuming, frustrating and costly as litigation. The first and the most basic requirement for mediation is that both parties want to mediate. Mediation requires two active voices in the room. The goal is to get an agreement that reflects what each of your needs, in order to move forward in your life. If you are not both willing and voluntary participants, then there will not be two voices, and the result will likely be failed mediation or, at best, an unbalanced agreement which could be subject to enforceability issues in the future.

Other requirements of a successful mediation:

  1. Both Parties Are Determined to Settle The Matter: If both parties want to resolve everything in mediation, and keep coming back to the table to talk and to try, then they will likely be successful.
  2. Both Parties Must Be Active Participants.  Both people have to contribute to the discussion. This means that you have to be able to sit in the room together and use your best efforts to listen to your ex, even when you don’t agree with what he/she is saying. If you and your ex-have a dynamic where one of you feels intimidated by the other, and you can’t say what you are really thinking with him/her in the room – then mediation is probably not the right process for you. It follows also that neither person should be cognitively or emotionally impaired (e.g., severe depression) in any way that affects capacity to mediate. Neither person should lack capacity due to drug or alcohol abuse.
  3. Both Parties Want To Settle the Case and Move On.  The breakdown of a marriage is similar to a death and does cause both parties to engage in the grieving process. This can involve transition through various stages such as denial, pain, anger, depression, reconstruction and eventually acceptance. It is often the case that divorcing couples are at different stages of the grieving process which can certainly complicate the ability of both parties to have lucid discussions about child custody, visitation, division of assets, support, etc.  Mediation of these important and often very emotionally charged issues requires a focus on the long-term and the big picture. You must think about your ex and – on some level – hope to honor your past love for each other, the years of your lives that you spent together.
  4. No Hidden Assets and Full Financial Disclosure. It goes without saying that parties cannot make informed decisions if they do not have all of the information on which to base decisions. In mediation, you will not have the power of the court behind you to compel your spouse to produce credit card statements, bank statements, stock options, small business records, etc. Most couples who choose mediation feel confident that they know what each other has, or can trust the other party to voluntarily produce information without engaging in formal discovery. Mediation would not be right for someone who wants to ‘make a deal’ without revealing their cards.
  5. No Patterns of Intimidation, Control or Domestic Violence. Finally, it is important to note that, if you and your spouse have a history of violence between you, you probably should use more traditional methods for negotiating your divorce. It is difficult to speak freely and express what you want if you fear repercussions or do not feel that you can contribute productively without inciting anger in the abusive spouse.

Whether you decide to mediate or litigate, it is also important that you retain an attorney to assist you during either process. Mediation is a way to conserve resources and funds, but you still need to have an attorney reviewing your agreements to be sure your interests are being protected. Mediators represent the agreement or the goal or resolution and do not have the ability to be representing the interests of the individual parties with conflicting interests. You want to make sure to have any agreements reached in mediation reviewed by your own counsel.

Chris D. Nichols Joins Incline Law Group

Chris D. Nichols

Incline Law Group, LLP is pleased to announce an Of Counsel relationship with Chris D. Nichols

Chris is a highly regarded attorney who brings over 25 years’ experience and knowledge in the areas of Estate Planning, Bankruptcy and Debt; Real Estate, Gaming and Business Law. He also serves as general counsel for many of his clients.

Chris has been licensed to practice law in Nevada since 1987 and Utah since 1984 including all Federal and State Courts in Nevada and Utah as well as Ninth Circuit Court of appeals. He received his J.D. from the University of Utah S.J. Quinney School of Law in 1984, and his Bachelor of Science Degree, Cum Laude from Weber State University. Chris is an avid skier and looks forward to spending winters in Tahoe.

“This Of Counsel arrangement with Chris allows Incline Law Group to support the growth of our existing Estate Planning, Real Estate and Business Law services as well as add Bankruptcy and Gaming Law to our practice areas, allowing Incline Law Group to provide legal clarity and support to our clients in the Lake Tahoe region,” said, Cassell von Baeyer, Incline Law Group’s managing partner.

Mr. Nichols is accepting new clients; please contact Incline Law Group LLP at 775-831-3666 or via email to schedule a consultation.

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