Non-Exempt Assets

Published on: August 17, 2011

Inherited IRA’s In Florida

A new law, Florida Statute 222.21, is going to be amended to state that inherited IRA’s are exempt property. So if you inherit an IRA from a loved-one or spouse, the trustee will not be able to take that money to pay your creditors. This will be the case even if the deceased lived out of state. And the law is retroactive, so it does not matter if the IRA was inherited before or after the bill becomes law. If you have questions regarding your IRA or other investment property, contact a Jacksonville Bankruptcy Attorney at 904-685-1200 today.

Published on: August 15, 2011

Will I lose My Child Support if I File For Bankruptcy?

By David M. Goldman

No, your will not lose any rights to your child support by filing for bankruptcy. You must disclose in your bankruptcy how much child support you receive. However, this child support is exempt from being taken to in order to pay your creditors (meaning it is exempt property) for any amount reasonably necessary to help support your children.

The child support that you receive is considered income for purposes of the means test. The means test is the mechanism used to determine if you qualify for a Chapter 7 bankruptcy. (If you do not qualify for a 7, you can always file for Chapter 13 bankruptcy if you meet the debt ceiling to do so.)

To find out more about child support in bankruptcy, contact a Jacksonville bankruptcy attorney today. We do free consultations, just give us a call at 904-685-1200 to schedule yours today!

Published on: August 13, 2011

What Possessions Can I Keep Out of Bankruptcy?

By David M. Goldman

You must list all of your assets in your bankruptcy, but the trick is getting all the exemptions that you can for your possessions. By saying that your item is exempt means that the creditor cannot take it to pay for your debt. Which items are exempt? This answer varies state by state. Bankruptcy is technically a federal program, as it stems from the US Constitution. However, Congress allows states to opt out of the federal exemptions and make up their own.

You cannot simply pick and choose which items you want to keep out of bankruptcy. In Florida, you can exempt your homestead, certain insurance plans, alimony, child support payments, certain pensions, some of your wages, a certain amount of automobile equity, and a certain amount of your personal property. An Orange Park consumer law attorney will help get you the most exemptions that you are eligible for, letting you keep the most amount of your property. Call us today at 904-685-1200 to discuss your specific case.

Published on: August 8, 2011

Should You File Bankruptcy Before or After Divorce?

By David M. Goldman

If you and your spouse are still facing piling debt, you may be thinking about bankruptcy. However, since money issues are often the cause of divorce, you may also be thinking about splitting up as well. This dilemma leads to the question: Should you file bankruptcy now, or wait until after you split?

First, you should know that it is possible to file bankruptcy separately even if you are still married. This is often best for couples who know they are about to split and don’t think they can work well together during their joint bankruptcy. The rules differ for spouses who are still cohabitating as opposed to those who have separated, so *talk with an attorney to figure out what’s best for you.

However, if you and your spouse believe you can work together during the bankruptcy, it might make sense to file bankruptcy before your divorce. Only married couples can file jointly, and it helps keep down numerous costs. Filing bankruptcy prior to the divorce may effect alimony payments and other divisions of assets during the divorce process. Keep in mind, however, it is not always possible to discharge certain spousal payments such as alimony or child support payments in divorce. To find out which situation will be best for you, call a Jacksonville Bankruptcy Attorney.

Published on: August 2, 2011

Florida Bankrupcty Lawyer: Can I sell my Assets Prior to Filing Bankruptcy?

By David M. Goldman

For example, what if someone thinking about bankruptcy has stock. Can he or she sell that stock before filing bankruptcy and put the money in something else? Generally, if you file bankruptcy, the Court will ask you about your sales of assets in the months prior to filing. They will attempt to see if you have made any fraudulent sales or transfers in an attempt to avoid paying a creditor, during this time and they mainly check to see if you received fair market value for your assets. So, if you sell your stock, you will need to disclose that sale and will need to list the proceeds as an asset.

Further, the court may view your sale as fraudulent in certain circumstances. For example, in Florida there exists an exemption under bankruptcy plans for your homestead. In other words, creditors cannot use the equity in your home to satisfy debts. However, if you have a second home, creditors may use the equity therein to satisfy your debts. Thus the question arises: what if you sell your second home and use the proceeds to pay some (or all) of your mortgage on your primary home?

The 2005 Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCA) largely prevents these practices. The statute now says you might lose your ability to discharge debts if you transfer property solely to hinder, delay or defraud creditors. Courts are left to determine what constitutes hindrance, delay, or fraud, so lawyers are cautious in encouraging such practices. If you are thinking about filing bankruptcy, contact a Ponte Vedra Beach Bankruptcy Attorney at 904-685-1200 to discuss your options.

Published on: July 30, 2011

Can a Creditor Freeze My Account?

By David M. Goldman

Yes, a creditor can freeze or take money out of your bank account if they have a judgment against you from the court. (If your delinquent debt is for unpaid taxes or child support, sometimes the creditor can take out money from your bank account without a judgment.) If you have a joint account and the other person on your account has the judgment, the creditor can also seize the funds from your account. It is up to you to prove at a hearing that these funds taken from the account are yours, and not the joint account holders. A Jacksonville attorney can help you do this properly.

A creditor can take this money from your account with no warning in most cases. They must notify you in writing the next day that they have taken the money, but by that time the damage is already done. Your bank must also notify you after the funds are taken.

A Jacksonville consumer law attorney can quite possibly get this money back for you, however. Oftentimes certain money is exempt from the creditor’s grasp, but you must have a hearing to prove it. Social security income and veterans benefits income are exempt from being taken. Also, certain retirement income and disability income are exempt. There is other exempt monies as well. Contact our Jacksonville lawyer today to see if the money taken from your account is exempt and learn how our legal team can help you get it back.

Published on: July 25, 2011

Florida Bankrupcty and Homestead Exemptions

By David M. Goldman

A Florida homestead exemption dictates how much of the equity in your home you may keep away from creditors. This means that any equity you have above that amount must be paid to creditors. The federal homestead exemption amount is $21,165.00. The Florida homestead exemption amount is unlimited under certain circumstances. This means that in Florida, you can have any amount of equity in your home and your creditors cannot take it. This is great news for those in the Jacksonville area who are overwhelmed by their debt and are needing to file for bankruptcy. Contact a Orange Park bankruptcy attorney today to discuss how to keep your home by filing for bankruptcy.

Published on: July 24, 2011

Jacksonville Bankrupcty Lawyer: Are There State Law Exemptions in Bankruptcies?

By David M. Goldman

Exemptions dictate what property of yours that you may keep when you file bankruptcy. Most people are surprised to learn that in most cases, the exemptions used in bankruptcy come from state law, not federal law. This is because states are allowed to opt-out of federal law exemptions and make up their own. Florida has done this. There are residency requirements however, to be able to use Florida’s exemptions. Just because you are a resident of Florida when you file for bankruptcy does not mean that you can use Florida’s exemptions. The law dictates that your bankruptcy exemptions are determined by the state in which you have been domiciled for the 730 days prior to filing your case. If you have lived in multiple states during this time, figuring out what state’s exemption laws apply to you can be tricky. A Jacksonville bankruptcy attorney will be able to help do this correctly. If you do not get your exemptions right, the trustee will object in your case.

Published on: July 1, 2011

Are IRAs protected in Bankruptcy?

By David M. Goldman

As you’re probably aware, an Individual Retirement Account, or IRA, is a type of savings account primarily used in preparing for retirement. Monetary contributions to traditional IRAs are tax-deductible, making them an attractive option for retirement.

As with most assets, IRAs are transferable to a named beneficiary upon death. When transferred, the IRA is referred to as an inherited Individual Retirement Account.

In bankruptcy, traditional IRAs are considered exempt under Florida law. This means that any assets you have in an IRA cannot be touched by your creditors. (As a caveat, you can typically contribute $5000 to $6000 per year to your IRA, depending on your age. So, you can’t put all your assets into an IRA and then declare bankruptcy.) Under the old version of Florida law, only traditional IRAs were considered exempt; creditors could, in fact, go after inherited IRAs.

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