Author Archives: Joe Orenstein
Our firm regularly encourages and supports businesses in the process of getting on their feet. Starting a business can be a treacherous endeavor, and there is a certain temptation to keep things simple by remaining unincorporated/unorganized. If you are doing business in our state, there are quite a few reasons why doing so is an unnecessary risk:
Reason #1 – Protection of your personal assets.
Shareholders in a corporation and members of an LLC have “limited liability.” What this means is that almost any misdeed, misstep, wrongdoing, or other issue imposing liability on the organization can only affect the owner to the extent that they have invested in the business. This is most useful with respect to debts incurred by the business—if the organization cannot services its debts, the owner/shareholder will not be on the hook for those liabilities (with limited exception for fraud and some tax liabilities). Typically, this is the main feature and benefit of incorporating/organizing your business.
Reason #2 – Tax Flexibility & Benefits
At first blush, the added tax burden of “double taxation” makes incorporation a disadvantageous tax approach. With the advent of the Limited Liability Company and the S-corporation election, however, owners can make tax decisions that allow them to be taxed once as a “pass-through” instead of twice. From a bookkeeping standpoint, it is easier to maintain clean books with the existence of the separate LLC/Corporate entity, which will have its own accounts and liabilities. Importantly, studies have shown that incorporated/organized entities are audited at a much lower rate than sole proprietorships. Studies going back to 2006 show that the audit rate for sole proprietorships is almost four times higher than that of a normal tax filer.
Reason #3 – Durability
Since sole proprietorships are considered to be and extension of the individual, the sole proprietorship cannot continue to exist once the owner has died or otherwise been unable to operate the business. For the longevity of the business, having an organizational entity makes it possible to continue the existence of the business indefinitely. With respect to partnerships, sometimes the death or disability of one partner can put a stranglehold on business operation, which could be avoided by use of an LLC or Corporation.
Reason #4 – Liquidity/Transferability
It is very difficult to transfer an interest in a sole proprietorship or partnership. Think about all of the time you work in building your business so that it can be viable and valuable to clients. At some point, it makes sense to be able to freely transfer your ownership to someone else who is interested in continuing to provide that value to your customers. For some folks, the value and goodwill in their business is their retirement plan. Without an organizational body, it is quite difficult to transfer interests to other individuals, whether you are selling out, adding a member, or otherwise transferring interest in the business.
Reason #5 – Brand Protection
Once your name is filed with the North Carolina Secretary of State, it is your name, and it is your brand. They will not issue the same name to another business in the state. Companies interested in using your name, moreover, are going to be reluctant to do so when you have already locked it in with the Secretary of State.
Reason #6 – Credibility
How many successful companies do you see that are unincorporated or unorganized? Organization/incorporation adds creditability to your business. It shows a professional attitude and understanding of the need to conduct business independently from personal endeavors. Importantly, it can be a requirement if your business is looking for funding, as many banks and lenders are going to require the existence of a corporate entity to protect themselves in the event of default or subsequent problem. Just the mere addition of Inc. or LLC at the end of a name adds a certain credibility for a business as they look to attract investors and customers.
Do I Need an Attorney to Organize or Incorporate my Business?
The short answer to this question is no, but it really is not the full answer. You can visit the Secretary of State’s website and pull down the requisite forms, fill them out, and send them in. Doing so will get you the bare minimum, but really does not help you with respect to Reason #1 above.
The first and foremost reason to form a corporation or LLC is to limit your liability. Limited liability is often referred to as the corporate veil. The corporate veil is the shield that protects the owner, personally, from the liabilities of the business. If something happens in the business, a weak corporate veil might mean that a creditor/plaintiff can “pierce” the veil, and successful assert liability against you personally. In other words, if you don’t have the necessary formalities in place, you might be defeating the purpose of incorporating in the first place.
An attorney can help you add necessary formalities, with things such as (1) an operating agreement or bylaws, (2) organizational minutes, (3) corporate books, and (4) other foundational documents that help show that the business is a standalone legal entity. “Going it alone” is not a good option if you want to make sure you have a strong corporate veil. A weak corporate veil gets pierced.
Coltrane Grubbs & Orenstein, PLLC, has extensive experience in helping fledgling business get off the ground and helping existing businesses operate at maximum efficiency and effectiveness. Our practice is tilted towards supporting small businesses that want to build a strong foundation in our community and need an attorney who can help them resolve personal and professional issues every step of the way.
Chances are you know someone with special needs or know someone who has a family member with special needs. Such special needs can arise due to a mental or physical defect existing at birth or an injury occurring later in life due to an automobile accident, drug and/or alcohol abuse, injury on the job (including an injury suffered while serving in the military), or the onset of dementia.
Disabled Americans have access to several programs providing both emotional and financial support to help them and their families thrive. When you have a disabled person in your family, it is important to make sure that your own estate plans are crafted in such a way so that the disabled family member continues to have access to all such support programs.
Special Needs planning often includes protecting assets for the benefit of loved ones, who, for whatever reason, are not able to manage an inheritance properly OR would be negatively affected by the direct receipt of an inheritance.
A Wife with Dementia
A husband might come to see me if he is worried about his wife. She has been having some memory issues and is no longer able to manage money on her own. He and his wife have had several wonderful years together and he wants to make sure that her needs are met after he’s gone, but if he were to pass away first, what would she do with the family savings? Who will make sure the money is used properly for her care? Who will protect the assets from future long-term care costs?
A Paralyzed Son
A mother might come to see me if she is worried about her son. Her son was injured in a car accident a few years ago, which left him partially paralyzed. She has been taking care of him since the accident, but realizes that there may be a time in the near or distant future, when she cannot care for him like she is now. The mother wants her son to inherit from her, just as her other children will someday, but she also wants to make sure that he continues to enjoy the same governmental support that has helped them both cope since the accident. Who will take care of him after she’s gone? Who will make sure his inheritance from her is used properly for his care? Who will protect the assets from future long-term care costs?
An Autistic Granddaughter
Grandparents might come to see me if they are worried about their young granddaughter’s health care needs. Recently diagnosed with Autism, their oldest granddaughter’s future ability to manage her own health care decisions and finances is unknown. The grandparents want their children to inherit equally, but also want to make sure that if their granddaughter inherits directly from them, that their granddaughter’s inheritance is managed by someone that they trust. They want to make sure the funds are used specifically for her education and health care needs and NOT on frivolous things. If their granddaughter is already receiving governmental benefits, they certainly do not want to disrupt that!
Without proper planning in these situations, special needs beneficiaries (like the wife, the son, and the granddaughter, above) would likely NOT be entitled to as many support programs as they would otherwise receive. If ineligible due to poor planning (or no planning), the burden for providing equivalent services would fall to family and friends. Most clients want far more control over their futures and want to ensure that they do not become burdens on their family and friends.
If you or someone you know has a family member with special needs planning or special needs trusts, please have them reach out to us. Together, with proper insight and planning, we can minimize the strain that a special need might otherwise have on the family’s mental health and finances. We are your lawyers, every step of the way.
Managing rental property may seem simple and profitable to the uninitiated—in truth, the landlord-tenant relationship is ripe for conflict. In our state, landlord-tenant laws have been written and construed in such a way that tends to give the benefit of the doubt to the tenant. As a result, dealing with stubborn or clever tenants that are uncooperative can oftentimes be costly and time-consuming. We here at Coltrane Grubbs & Orenstein are glad to assist you in the event that you have reached a difficult stretch with one of your tenants. If you are not in such a predicament, but are a landlord renting property in our state, there are some steps that you can take proactively as a landlord to prevent problems and help solve problems quickly in the event that they occur. The following are some important tips for landlord success:
1) Have a Written Lease Agreement
In North Carolina, oral lease agreements are typically enforceable, depending on some specific factors. Still, having an oral lease agreement is risky for an obvious reason: in the event of some dispute over the terms of the agreement, it becomes difficult to determine (from an evidentiary perspective) which party is telling the truth. As a tenant, you wouldn’t want your landlord hauling you into court several months into your tenancy to collect $800 in rent when you were under the impression that the rate was $400. As a landlord, the opposite scenario happens with alarming regularity: the landlord comes into court claiming that the tenant has been $100 short on their rent for three months, and the tenant defends by saying that they thought the rent was a lesser number. Nothing can disarm a landlord-tenant dispute better than a well-crafted lease agreement signed by both parties. Our office regularly drafts lease agreements that can suit this purpose.
2) Conduct Move-In and Move-Out Inventories
The condition of the apartment is the aspect of tenancy relationships that is most commonly disputed by the parties. The best way to deal with, and prevent, disputes with your tenant is to have a clear record of the condition of the apartment prior to the tenancy. It is recommended that you take the time to walk through the apartment with the tenant to identify those issues that the tenant sees, but you do not. Make sure to point out and record the condition of appliances, carpets, flooring, fixtures, and bathroom ceilings/walls. After the tenant leaves, it is equally important to take another thorough inventory, using the initial move-in inventory as a comparison point. This inventory is what you will use to identify issues that exceed normal “wear and tear” and justify application of security deposit funds towards repair.
3) Properly Handle Security Deposits
Speaking of security deposit funds, North Carolina statue specifically provides for the proper handling of security deposit funds. While I won’t go into exhaustive detail here, a previous blog post (found here) can give you all the information you need to know about how to handle security deposits. Many landlords handle security deposits improperly, because they just do not know the rules.
4) Keep Meticulous Records (Don’t Be Lazy)
Landlords have a tendency to take your check every month, deposit it, and go on about their business. Please don’t be lazy! Keep an accurate and up to date ledger of payments received from your tenant. Keep up with repairs that are made during the tendency. Keep up with your inventories. Documentation and records can be the difference in the event that there is some dispute about the condition of the tenancy or the amount/existence of rental payments.
5) Know Your Neighbors
Let’s face it, neighbors are nosy. Use your nosy neighbors to your advantage – it is good to have a neighbor who will be willing to tell you when something is going on that should not be happening on your property. In many cases, your neighbors can be your first line of defense and information in the event that your tenant is up to no good.
6) Know How to Evict (Don’t be Afraid to Get Help)
Eviction in North Carolina can be a difficult and complicated task, given the wrong set of circumstances. Know that self-help eviction is prohibited in our state for residential tenancies. Know also that it can be advantageous to seek the assistance of an attorney early in the case, even if it is only to get advice about how to handle the eviction on your own. Oftentimes, paying for an attorney’s advice or assistance on the front end can prevent repeat filings and prolonged disputes.
7) You are Only as Good as Your Tenant
This is the most important piece of advice that I have for landlords: you are only as good as your tenant. Before you sign a lease, make sure that you have gathered as much information about your tenants as possible. If they have references, check them. If they are willing to provide a credit report, get it. If you know them personally, or by acquaintance, find out what you can from your contacts. The vast majority of tenants will pay regularly, keep the tenancy in good condition, and are otherwise reasonable. It is the “one-in-ten” tenant that you really have to avoid – these tenants can cost you dearly in frustration and court/attorney costs. A clever and dishonest tenant can be a serious problem in our state, no matter what precautions you take.
Coltrane Grubbs & Orenstein is a full-service, client-oriented law firm with extensive experience in treating and resolving landlord-tenant disputes. If you are dealing with a troublesome tenant, or would like to avoid a troublesome tenant altogether, give our office a call today to set up an initial consultation (336-996-4166).
When people ask me what area of law I practice, I tell them that, among other things, I practice Elder Law. That response often has me answering a follow-up question: “What is Elder Law?” The definition that I have carefully chosen to give in response focuses on empowerment. I help older adults proactively manage their futures.
When people envision growing older, some may look forward to retirement—traveling, spending time with grandkids, focusing on old hobbies or taking up new ones. They have a clear picture of independence—a joyous graduation from the daily grind they remember from their working years, raising children. However, that clear picture may be dulled by a fear that such independence may be short-lived, as the loss of physical mobility, mental sharpness, sight or hearing may require dependence on others to get by. There are cartoons that poke fun at old age, likening it to a reversion back to infancy, when we were all entirely dependent on caregivers.
While we did not have much control over who our caregivers were as infants, as adults facing the POTENTIAL future need for assistance from others, we certainly DO have the power to choose NOW. As an Elder Law attorney, I draft legal documents in which my clients choose WHO has the authority to help them with future potential needs, WHEN that authority will become effective, and WHAT decisions the chosen individuals will be allowed to make.
Durable Power of Attorney
A Durable Power of Attorney (or DPOA, for short) is the document signed by a client that designates an agent (called an Attorney-in-Fact, or AIF, for short) to help the client make legal and financial decisions. The document can be drafted to allow the agent to be able to help immediately or only upon the incapacity of the client. The document can be drafted to be very wide in scope, allowing the agent to help the client with just about anything OR can be limited to just a few certain transactions.
Health Care Power of Attorney
A Health Care Power of Attorney (or HCPOA, for short) is the document signed by a client that designates a series of agents (called health care agents or healthcare proxies) to help the client make health care decisions. The document generally takes effect only upon the client becoming unable to make sound healthcare decisions for him or herself. The client, however, can choose what health care decisions the agents or proxies can make in the client’s behalf. A well-chosen health care agent should be a person you trust, who KNOWS your health care issues and concerns, and is willing and able to follow your wishes. The health care agent or proxy may be called upon to make end-of-life decisions for you, so it is important that you trust your agent enough to discuss your feelings regarding end-of-life openly and honestly.
If you are not blessed with family or friends you trust enough to help you with legal, financial, or health care decisions, or you never sign a Durable Power of Attorney or Health Care Power of Attorney granting them the authority to assist you, the court system does have a procedure for appointing an individual to help you if you are found to be unable to help yourself. This procedure involves an interview by a representative of the court system, who helps the clerk of court determine if you are incompetent. If you are determined to be incompetent, it is the clerk of court who decides who will assist you with health care decision (called a Guardian of the Person) and who will assist you with legal and financial decisions (called a Guardian of the Estate). The clerk can only choose among the individuals who have applied to be Guardian…or if no one has applied, the clerk can choose a governmental agency (like the Department of Social Services or the Public Administrator for the county) to serve as Guardian.
Being a rather independent person myself, I tend to encourage my clients to name Attorneys-in-Fact or Health Care Agents themselves, if at all possible. Signing such forms is one of the simplest and quickest ways to take charge of your own future. At some point, we all may need a little help from friends and family. Why not choose who those friends and family will be? Just like the attorneys at Coltrane, Grubbs & Orenstein, those attorneys-in-fact and health care agents will be with you, every step of the way.
For some time now, the Forsyth County District Attorney’s Office has dealt with traffic infractions through use of a representative in Courtroom 1B at the Forsyth County Hall of Justice. Recently, however, the number of defendants coming through Courtroom 1B on any given Tuesday or Thursday has increased to the point where defendants are waiting several hours in line to have their matter resolved. Without room for expansion or capacity to alter the process to accommodate the volume of defendants, the Clerk of Court and District Attorney’s Office have decided on a new protocol for handling certain traffic infractions outside of the Forsyth County Hall of Justice.
Specifically, many non-speeding traffic infractions can now be handled via the www.ncfcc.us website, without having to physically appear in court. A list of those infractions that can be handled via the website follows:
No Operator’s License (G.S. 20-7(A)
Expired Operator’s License (G.S. 20-7(F))
Driver’s License not in possession (G.S. 20-7(A))
Failure to carry a Valid Driver License (G.S. 20-7(A))
Failure to notify DMV of address change (G.S. 20-7.1)
No Insurance (G.S. 20-313(A))
Expired Registration Card/Expired License Plate (G.S. 20-111(2))
Failure to Carry Registration Card (G.S. 20-5(C))
Failure to Sign Registration Card (G.S. 20-57(C))
Registration Card Address Change Violation (G.S. 20-67(A))
Expired / No Inspection (G.S. 20-183.8(A)(1))
This list encompasses those infractions which, typically, can be dismissed with a relevant offering of proof. For example, a citation for Failure to Carry Registration Card can oftentimes be resolved by showing proof of registration.
Why not just pay the citation?
There is at least one very compelling reasons to avoid a plea of responsible on one of the charges listed above. Upon entry of such a plea (known as “pleading responsible,” “admitting responsibility,” or sometimes “pleading guilty”), you will be required to pay fines and fees that are listed at the bottom of your citation. The offenses listed above are typically dismissed by an offer of proof, which will save you the $300 or so in fines listed.
Moreover, if you receive a citation for lack of insurance, this citation can result in driver’s license points. A voluntary dismissal of any of these offenses is better than a responsible plea which can remain your driving history permanently.
Can I just ignore the citation? The officer said it wasn’t a big deal…
The unequivocal answer to this question is no. The worst thing you can do with a traffic infraction is ignore it. Failure to respond to a citation or otherwise appear frequently results in a “Failure to Appear” charge. In many cases, a Failure to Appear results in the suspension of your driving license. Moreover, to resolve a Failure to Appear charge, the Clerk of Court will require that you pay an extra $200 fee, assuming you are successful in recalendaring the case.
We have seen this happen to our clients: it is easy to forget about a minor traffic citation like the ones listed above. In some cases, you won’t learn about the failure to appear until you have been pulled over for a subsequent offense and the police officer informs you that, surprise, your license has been suspended. If you think you have a failure to appear, or you have been told that you have one, please give our office a call. We are glad to assist you in the process of recalendaring the case and resolving it. Once it has been resolved, you will be able to ask the DMV to reissue your license, etc.
So, what should I do?
The easiest way to handle one of these traffic infractions is to give our office a call (336-996-4166). Our office has experience in dealing with the new system and handling these kinds of citations. For that matter, you should call our office in the event of a speeding ticket as well. Read here to find out why paying your speeding ticket costs you more in the long run. As always, if you have questions, please give our office a call and ask to speak with Carol Hatjes or Joe Orenstein – we’d be glad to help you through your traffic citation issue.
For those of you who follow happenings in the Kernersville business/legal community, you may have noticed changes in our firm and our brand during the past year. Excitingly, our name has changed as we have added Joe Orenstein as a named partner, making our firm name Coltrane Grubbs Orenstein. Along with this change, we have debuted a new brand, featuring a new logo, which is featured prominently in our marketing materials and our completely re-vamped website.
For all of the changes and enhancements we have made over the last year, the most important is the adoption of a new tagline: Your Lawyers. Every Step of the Way. For us, this tagline represents more than just a new creative or engaging way of presenting our firm. This tagline represents what we expect Coltrane Grubbs & Orenstein to be for our clients and the Kernersville community.
This motto is an encapsulation of our mission and expectation as a law firm. Our mission is to provide trusted advice that guides our clients through their legal issues while developing lasting professional and personal relationships. This mission is at the core of Coltrane Grubbs & Orenstein—as attorneys and as counselors-at-law, our goal is to build relationships with our clients.
Our Practice Areas
So, does this mean that we handle every legal matter? No. Frankly, the specialization of attorney practices have made it very difficult to cover every single complex area of practice. However, we do seek to cover a wide variety of practice areas more than just competently, but excellently. In so doing, we are able to meet the legal needs of our clients while providing the service that you would expect out of a larger law firm.
By way of example, this is our exhausting, non-exhaustive list of practice areas: Chapter 7 Bankruptcy Petitions, Chapter 13 Bankruptcy Petitions, Motion to Claim Exemptions, Debt Negotiations, Creditor Bankruptcy Representations, LLC Formation, Corporation Formation, Organizational Document Drafting, Asset Purchases, Stock Purchases, Miscellaneous Business Drafting, Business Document Review, Durable Powers of Attorney, Health Care Powers of Attorney, Living Wills, Simple Will Drafting, Trusts – Revocable, Trusts – Irrevocable, Complex Will Drafting, Absolute Divorces, Separation Agreements, Family Law Violence Litigation, Prenuptial Drafting/Review, Equitable Distributions, Child Custody and Support, Post Separation Support and Alimony, Adoptions, Traffic Tickets – Forsyth County, Traffic Tickets – Guilford County, Personal Injury Litigation, Business Litigation, Landlord/Tennant Disputes, Evictions, Demand Letters, Real Estate Litigation, Spouse’s Year Allowances, Probate Small Administrations, Probate Full Administration, Beneficiary Representation, Quitclaim Deeds, Seller Document Preparation, Cash Real Estate Purchases, Financed Real Estate Purchases, Refinance Closings, Title Research and Opinions, Draft/Review Leases, Offers to Purchase, Complex Real Estate Drafting, Homeowners’ Association Representation, Commercial Leases, Commercial Refinances, Commercial Deed of Trust Drafting, Medicaid Planning, Veteran’s Administration Planning, Special Needs Trusts, and Guardianship Proceedings.
Every Step of the Way.
Kernersville and the surrounding area continues to grow in a fashion that looks less like a town and more like a burgeoning city. As our community grows, we believe that relationships become more important. Our intention is that clients believe that they have a lawyer whom they can trust, not just for their first legal need, but for legal needs that they have down the line. From closing on a new home to dealing with a traffic ticket. From enduring the tribulations of a difficult financial situation to receiving advice and assistance in the administration of a parent’s will. From starting a new business to selling a profitable business. We hope that we can help you down the line, every step of the way. Our tagline says it.
While most people DO get together with their families for at least one of the upcoming holidays, it is rare that the PLANNED discussion involves estate or long-term care planning. However, I have found in my years of practice, that while these discussions are not usually planned, they often occur nonetheless, rather spontaneously. There are excellent books and articles published about HOW to go about starting such conversations… but I honestly doubt that most such conversations start the way they are planned. Corresponding to these family discussions (whether planned or spontaneous), my estate planning practice usually increases during the holiday season.
Long-Term Care Planning
It is during these family gatherings that the needs and desires of family members come to the forefront. Perhaps you talk to your mom or dad frequently over the phone, but will not see him or her until a holiday gathering is upon you. It is only then that you really see how your mom or dad’s physical, emotional or mental condition has changed since the last time you met face to face. It is often, during the weeks and days surrounding such family gatherings that doctors’ visits or legal consultations are scheduled. The children may initiate these visits out of concern… or the parents’ may initiate these visits while they have family in town who can drive them to appointments and can keep them company at such appointments.
Powers of Attorney and Living Wills
Perhaps you are waiting until a family gathering to discuss roles some family members may play in your estate and long-term care plans. An elderly client might choose to pull aside a son and daughter to discuss naming them as Attorneys-in-Fact in a Durable Power of Attorney or as Health Care Agents in a Health Care Power of Attorney. A young parent may pull aside his or her brother, sister, mom or dad, to discuss with them the possibility of serving as their minor child’s guardian or trustee. And while it is generally no one’s idea of happy mealtime conversation, it is often during such family gatherings that candid commentaries regarding end-of-life care are made. Some commentary may be made with heartfelt sincerity, while other commentary may be made in jest to lighten the mood. Most of my clients’ views on end-of-life decision-making stem from their own recent personal experiences regarding the end-of-life care of a close family friend or relative. While such discussions may start out being very public (around the dinner table or in the driveway), they do often spur insight and more private discussions with the family and friends you choose to be involved in such decision-making for you.
Last Wills and Testaments
Such gatherings also usually bring to mind the family members who may not be present this year. Such family members may be absent due to death, illness, estrangement, or merely relocation for a new job, school or marriage. Talk of such family members may bring to mind just how your family dynamics have changed over the years and what changes may need to be made to your estate plans to reflect the current dynamics. The sister you had previously selected as your Executor may not be able to serve due to illness. The brother and sister-in-law you had previously selected to be the guardian of your children may have gotten separated or divorced. The spouse you had previously selected to receive your entire estate may have developed dementia and may not be able to manage the inheritance he or she may receive from you. In any event, such discussion should spur you to revisit your current estate planning and long-term care planning documents to see if they will serve you as they are currently drafted.
Another Set of Eyes and Ears
Many of my clients wish to amend their estate plans during the holidays because they have family and friends around to review the documents with them. It is not uncommon for a client to bring his or her children, siblings, or friends along for the estate planning appointment. These “guests” offer another set of ears to hear the questions asked and the answers given, but also even serve as scribes, writing down information that may need to be gathered. With the permission of the client, these guests may also ask their own questions to help them better understand the discussion or to bring up a question that the client may be too embarrassed to ask.
If family discussions this holiday season steer you and your loved ones to revisit your current estate plans, then please do not hesitate to give us a call. As your needs change, as your family dynamics change throughout the course of your lifetime, we are here to help you plan accordingly. We are your lawyers, every step of the way.
Chapter 13 bankruptcy is based on the principle of debt reorganization, rather than asset liquidation—you take all of your debts, put them into a pile, and then make repayments into that pile over a three to five year period. (If you need more information about the basic difference between Chapter 7 and Chapter 13, look here.) The central concept of a Chapter 13 is that your repayments aren’t based on what your creditor’s say that you owe, rather, the payments are based on your disposable income. The chief benefit of this approach is that a Chapter 13 debtor has the opportunity to account for important daily expenses (i.e. gas, food, rent, clothing, cell phone bills, utilities, etc.), before making payments to their creditors.
This basic conceptualization of a Chapter 13 plan payment, however, does not adequately capture the practical impact of different varieties of debt. When it comes to secured debt and unsecured “priority” debt, understanding the components of a Chapter 13 repayment plan can be difficult.
A Threshold Question: Are You Above or Below Median?
The first question that we ask in a Chapter 13 context has to do with your “commitment period” under 11 USC §1325(b)(4). In other words, do you qualify for a three year bankruptcy, or are you required to stay in your Chapter 13 bankruptcy for five years? Learn more about means testing and median income threshold in our previous post, here. If your household income is below-median, you qualify for three-year Chapter 13; if your income is above-median, then you are required to stay in your Chapter 13 for five years.
As importantly, this determination bears heavily on the calculation of your disposable income for the purposes of your Chapter 13 plan. If you are above-median, then your disposable income is determined on the basis of the subsequent means test calculation (see more here). If you are below the median for your household size, then your disposable income is calculated in a less formulaic manner, based on the self-reporting that you do on Schedules I and J. Always keep in mind that all of your disposable income must be included in your plan in order for the court to confirm it. Consequently, determining your disposable income can be an important exercise in anticipating your potential payment in a Chapter 13 bankruptcy.
What about my House and Car Payments?
A common misconception is that Chapter 13 bankruptcy can eliminate (or drastically reduce) car or house payments to make them more manageable. For most debtors, this is untrue, although there are some uncommon scenarios where you can have your car payment reduced (ask your attorney about cram downs) or a second mortgage payment extinguished (ask your attorney about lien stripping).
The general rule is that you should expect to make payments for those houses or cars (or other secured debt) which you plan to keep through the bankruptcy. If you want to keep your house, you better be prepared to make the regular mortgage payment. Same goes for the car, unless you are eligible for a cram down—even in the “cram down” context, you will still have to make payments on the secured debt.
Of course, arrearages come into play here as well. If you are behind on your house or car payment, you can plan on paying back that arrearage over the life of your bankruptcy. Remember that Chapter 13 rearranges secured debt, but rarely does it discharge it altogether. If you want to keep your stuff, and it is pledged as collateral, you are probably going to be paying that debt back in full.
What is Priority Debt?
The most common examples of priority unsecured debt are monies owed to the government (i.e. taxes) and payments/arrearages owed as part of a domestic support obligation. Domestic support obligations commonly include child support and/or alimony payments. There are certainly other kinds of priority debt, a list of which you can find here. If you owe arrearages on unsecured priority debt, you should expect to pay those arrearages back over the life of the bankruptcy.
Tell Me How Much.
Unfortunately, it is rarely so easy. Even in the event that you file a Chapter 13 bankruptcy, the trustee can, and often does, modify the proposed repayment amount. While every Chapter 13 plan is different, you can expect to pay the following in your Chapter 13 plan:
- Trustee’s Fees;
- Attorney’s Fees;
- Regular Payments on Secured Debt (for property you intend on keeping);
- Regular Payments on Priority Debt (typically for an ongoing domestic support obligation);
- Repayment of Arrearages on Secured Debt;
- Repayment of Arrearages on Priority Unsecured Debt;
- Payment of any and all disposable income left over.
If it isn’t clear from the above, crafting a plan in a Chapter 13 bankruptcy can be a complex and client-specific exercise. Our office offers a free bankruptcy consultation for clients who are interested in learning more about Chapter 13 plans or any other aspect of bankruptcy. Please give our office a call today to arrange yours (336-996-4166).
What do the terms “Post-Separation Support” and “Alimony” Mean?
PSS and alimony are both claims for spousal support. An essential requirement for both claims is that the claimant be a “dependent spouse” and that the other spouse be a “supporting spouse.” A dependent spouse generally is someone who is actually substantially dependent upon the other spouse for his or her support and maintenance or is substantially in need of maintenance and support from the other spouse. Basically, this means that the person does not have sufficient income to maintain the standard of living which he or she enjoyed during the marriage without financial support from the other spouse.
At the risk of oversimplification, post-separation support is basically a form of temporary support which is usually payable until the Court can resolve the alimony claim.
In post-separation support claims, the Court can consider a number of economic factors. A dependent spouse will be entitled to an award of post-separation support if, based upon consideration of these factors, the Court finds that the resources of the dependent spouse are not adequate to meet his or her reasonable needs and the supporting spouse has the ability to pay post-separation support.
In alimony cases, the Court awards alimony to the dependent spouse upon a finding that one spouse is a dependent spouse, the other spouse is a supporting spouse, and that an award of alimony is equitable after considering all relevant factors. The statute lists a number of factors which the court may consider.
What about “fault”?
What role does “fault” play in post-separation support and in alimony claims? In the statutes, “fault” is generally referred to as “marital misconduct” and includes a variety of conduct, including the following:
(a) Illicit sexual behavior engaged in by a spouse with someone other than the other spouse;
(c) Indignities which render the condition of the other spouse intolerable and life burdensome;
(d) Reckless spending of the income of either party or the destruction, waste, or concealment of assets; and
(e) The excessive use of alcohol or drugs which renders the condition of the other spouse intolerable and life burdensome.
Theoretically, fault on the part of the supporting spouse is not a prerequisite to obtaining an award of post-separation support or an award of alimony. A judge can make an award of PSS or alimony without any evidence of marital misconduct. As a practical matter, however, the presence or absence of fault may influence a judge, both in regard to the question of entitlement to support, and also in deciding the amount and duration of support. Likewise, marital misconduct on the part of the dependent spouse will be relevant to the amount and duration of support. If a dependent spouse participates in an act of illicit sexual behavior during the marriage and prior to the date of separation, the Court is precluded from awarding alimony. If the supporting spouse committed an act of illicit sexual behavior during the marriage and prior to the date of separation, then the Court must make an award of alimony, although the amount and duration are within the discretion of the Court.
How long does alimony last?
The amount and duration of alimony payments are entirely within the discretion of the Court. Unlike child support cases, there are no guidelines for determination of the amount and duration of alimony. Alimony could be a single lump-sum payment, or it could be monthly installments payable indefinitely until the dependent spouse dies or remarries.
If alimony is awarded by the Court, the Court’s judgment will not be “final”; the Court’s rulings with regard to the amount and duration of alimony payments will be subject to possible future modification in the event of the occurrence of substantial changes in circumstances affecting one or both parties. For example, if the payor spouse is injured and becomes disabled, and experiences a substantial decrease in income, that spouse can petition the Court to reduce or suspend future alimony payments. This is not to say that the Court grants every such request, but only to say that such request can be made and sometimes is granted.
Although alimony is generally awarded for a period of time, it is subject to an earlier termination if either party should die, or if the dependent spouse should ever re-marry or cohabitates with another adult.
As an Elder Law attorney, it is rare that my clients show up alone. Most have family members (usually their adult children) along, who are there to offer emotional support, moral support, and, often, a safe ride to and from the appointment. The adult children who show up are usually quite intricately involved in their parent’s long term care planning and estate planning. If you are that adult child, you may have legal questions of your own to ask. Shouldn’t you be included in the legal consultation? After all, isn’t it important that you understand the role you may be playing in your loved one’s future?
Please Don’t Be Offended!
There are several reasons why an Elder Law attorney needs to meet with her older adult client one-on-one for at least part of the legal consultation. So please don’t be offended or surprised if you are politely dismissed from the room. In order to stay compliant with the rules and guidelines of the State Bar, attorneys must ensure that proper client protections are followed. Before real legal advice should be given out, the attorney must to do the following things: 1) identify the client; 2) uncover any potential conflicts of interest; 3) protect confidentiality, and 4) determine competency.
Attorneys must make VERY clear to the entire family–who IS the client and who is NOT the client. The “family” or the “situation” cannot be the client. The client is the individual whose interest are most at stake in the legal planning or legal problem. The client is the one—the only one—to whom the attorney has professional duties of competence, diligence, loyalty, and confidentiality. This is especially important in Elder Law, because adult children may be VERY involved in the legal concerns of the older adult and may even have a stake in the outcome. While it is possible, in some circumstances, for an attorney to represent two clients at once (most commonly, a married couple), it is quite rare. By the end of the consultation, the attorney should identify and confirm for ourselves and for all others present, that our client is the older adult… and ONLY the older adult. This is true regardless of who drove the car to get here, who made the appointment, and who wrote the check for the consultation fee.
Conflicts of Interest
Attorneys must actively avoid conflicts of interest. This means that in most situations, an attorney will usually only have one client in a transaction. Often, parents and children will have different interests in the outcome of a situation. It may be in the best interest of the child for the parents to gift them large sums of money or real estate. However, it may not be in the best interest of the parents to make such large gifts and threaten their own financial security and ability to provide for their own long term care. An attorney could not represent both the children and the parents in this situation. Sometimes joint representation is possible, even with potential conflicts of interest, but it is more likely that we will be representing only the older adult whose interests are at stake. I do the best job for the older adult client by representing only him or her. This is especially true if my client wants to discuss a power of attorney, a last will and testament, or planning for long term care.
Attorneys have an obligation to keep information and communications our clients share with us confidential. That means that we cannot share client information with other family members without the client’s approval. Some clients want all information shared and family member actively involved in discussions; some merely want family members to be given general updates; and some want complete confidentiality. A client may not feel comfortable expressing his or her desires regarding confidentiality when others are in the room for fear that they will offend their loved ones. In all cases we strive to keep our clients—and whomever they choose to involve—fully informed of the issues, options, consequences, and costs relevant to their concerns, and to be responsive to their goals and objectives.
Elder Law attorneys often work with clients whose capacity for making decisions may be diminished. Attorneys must treat clients with diminished capacity with the same attention and respect to which every client is entitled. This means meeting privately with the client and giving him or her enough time to explain what he or she wants. We find that the greater majority of older adults who come for legal consultations are able to tell us what the problem is and how we can help. Sometimes we’ll need to ask relatives for details such as addresses or dates or phone numbers, but even people in the early stages of dementia can usually communicate well enough to give us direction. Assessing a client’s capacity to make decisions is part of our getting to know the client. While most clients can explain a problem and discuss concerns and issues, there will be some clients who cannot. Speaking privately allows us to find this out. When family members answer ALL the questions, it makes it difficult for us to determine our client’s level of understanding.
Meeting one-on-one with our clients is essential to making sure that we are protecting our clients’ best interests. Most of the family members and friend who arrive with a client understand the importance of that one-on-one consultation and, when asked to wait in the lobby, do so willingly and respectfully. They know that family and friends who maintain some distance from the legal counseling and document signings are far less likely to be accused by other family members of undue influence. We don’t want our clients’ choices, and the documents they sign, to be undone one day in the future because we allowed family members to be too involved in the consultation and the legal process. That’s a court case we (and you) would rather avoid.