Child Custody in Georgia

Posted by on Mar 10, 2017 in Uncategorized | 0 comments

Child Custody in Georgia

Child custody will be a major issue if you are in the process of going through a divorce. Divorce proceedings can become overwhelming, especially when there are minor children involved, as a divorce can have a tremendous emotional impact on children. Similar to other states, Georgia has its own rules when it comes to making a custody determination. Georgia court’s focus on the “best interest” of the child. This article is written for educational purposes and it will highlight the basics of child custody. The main focus of the article will be on how child custody is determined. As always, it is generally advised to consult your local experienced family law attorney before determining what custody arrangement will be most suitable in your child’s case.

Basics of Child Custody in Georgia

In an event of a divorce, a custody order determines who has the legal right to keep the child. A child custody order transfers responsibility of care for a child to parents or someone in place of parents who keeps best interest of child in mind.

Child custody can be divided into two different parts:

1) Legal Custody

Under Georgia law, legal custody determines which parent has the authority to make major decisions on behalf of a child. The decisions pertain to areas such as: Medical treatment, Education, Religion, Extracurricular activities.  Legal custody can further be divided into: Sole legal custody and joint legal custody.

  • Under the Sole Legal custody, only one parent gets the primary authority to make the decisions concerning child’s major life areas.
  • On contrary, under the Joint Legal custody, both parents equally get a say in the important areas pertaining to the child’s life.

2) Physical Custody

Under Georgia law, physical custody determines with which parent the child will primarily reside with. In the state of Georgia, most courts give one parent primary physical custody, while the other parent is deemed to be the non-custodial parent. The non-custodial parent is generally provided with the visitation rights.

However, often times, the visitation rights are confused with the custodial rights. Under O.C.G.A. § 19-9-22(a), visitation is not the same thing as custody. The non-custodial parent is provided with the parenting times under which the non-custodial parent may visit the child. Furthermore, under the Court’s discretion, the visitation may be supervised depending on the external factors.

The joint custody can come in both legal and physical custody and it focuses on the responsibilities of each parent separately instead of both parents together. Unmarried parents who live separately have joined custody. Full joint custody allows both parents to make decisions together and have physical control of the child.

Determining Child Custody in Georgia Courts

In Georgia, custody is determined under the “Best Interest of Child” standard. Under O.C.G.A 19-9-3, the judge has the discretion to determine custody. If the child is 14 years or older, he has the right to select the custodial parent. Further, under O.C.G.A 19-9-3, if the custody of the child is issue between the parents, there is no “prima-facie” right for father or mother to claim the custody of the child. “Prima-facie” right is defined as legal presumption, which means on face of it at first sight. The Court should not favor one form of custody over another, nor should the Court favor either parent. Furthermore, during the custody determination hearing, the judge will have the sole discretion to make the decision, and Jury shall not hear the matter.
In determining the “best interest” of the child, the judge will take into consideration all the circumstances surrounding the case.

In determining what is likely to fall under the best interest of a child, the Court evaluates the standard under the following factors:

  • Child’s age
  • Child’s health
  • Emotional ties between the child and parents
  • The ability of each parent to care for the child
  • The child’s ties to home, community, and school
  • History of family violence (if any)

Sometimes, if custody harms the child, the court can give custody to somebody else because it is in the best interest of a child. This is called guardianship, where a person who is not the parent asks for custody.

Non-custodial parent cannot be denied right of visitation, if the non-custodial parent were never married to other parent, or because the non-custodial parent has a disability, or a different lifestyle.

Child Support Orders

When awarding the child custody, the Court also awards child support orders to the primary custodians. It is important to keep in mind the child custody and visitation isn’t the same as the child support order. Therefore, just because a parent cannot be stopped from visiting the child because he or she is not making the court ordered payments. On the contrary, a parent is still obligated to make the payments, even if the custodial parent is not allowing the non-custodial parents visitation rights. The Court in Beasley v. Lamb held that, “in an order changing child custody from one parent to another, the court can provide therein that the child support shall be payable to or by the person to whom the custody is awarded.”

Once the child support order is in effect, the Court has the discretion to modify the child support order, if the circumstances call for it. The Georgia courts are likely to modify the child support order if there has been substantial change in financial circumstances.

Going through a divorce is a roller-coaster ride, but it can be made less painful with the help of a professional. When minor children are involved, it is important to keep your child’s well being in mind, as well. A child demands affection of both parents, and nothing should come in between. Child custody determination can become complicated.

When child related matters are at stake, it is important to seek an experienced attorney who can assist you in your matter. Call us today at 770-609-1247 to speak with one of our experienced divorce and family law attorneys. You do not have to go through this alone, and we are here to help.

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Child Custody Modification Basics

Posted by on Sep 9, 2016 in Uncategorized | 0 comments

Child Custody Modification Basics

Facing a child custody modification issue? Now is not the time to sit on your rights and gamble away your child’s life. Now is the time to take an action that will serve the “best interest” of your child. “Best Interest of Child” Standard is the common standard used when determining the basis for custody and parenting orders.

Different Requirements for Modifying Visitation and Custody

A Court can generally modify a visitation or parenting time once in each two (2) year period following an initial entry of judgment without the show of change in circumstances.  Child Custody Modification can be allowed on the basis that significant change in family circumstances has taken place since the original order. If the change impacts the best interest of the child, Court will likely find the Custody modification to be appropriate. The parent requesting the custody change is required to submit a new proposed parenting plan to the court.  See O.C.G.A. § 19-9-3

Factors constituting Changed Circumstances

1. Relocation of Custodial Parent

Child custody may be modified if a custodial parent plans to move to a new residence. Under Georgia law, custodial parent may be allowed to move with a child unless non-custodial parent can show that the move will be detrimental to the child.

If the custodial parent plans to change the residence, non-custodial parent must be informed of any planned change in the residence. Under Georgia law, a custodial parent must give anyone with visitation rights or court-ordered parenting time at least 30 days advanced notice before planning a move. Lastly, in addition to the 30 days advanced notice, full address of new residence should be provided to the non-custodial parent.

2. Child’s Request to Change Custodial Parent

In Georgia, if a child is 14 years or older, he/she may choose the parent to live with. Judge is likely to honor that decision as long as it is in the child’s best interest. If the child is over 14, and requests a change in custodial parent, that will automatically be sufficient change of circumstances for custody re-evaluation. Judge gives consideration to child’s wishes, but has the discretion to evaluate other factors relating to the best interest of child standard.

If a child is at least 11 years old, the child may have discretion to choose which parent to live with, however the judge will review the overall circumstances closely. In some cases, Court is likely to appoint a Guardian Ad Litem (GAL), a neutral third party to represent the child and assist the judge in making a decision as to custodial preference. The Guardian Ad Litem (GAL) is likely to monitor child’s environment: home, school etc.

A judge has the discretion to grant temporary change of custody for period of 6 months if the child is between ages 11-14. If a child has an older sibling and wishes to accompany that sibling, to preserve family unity, judge is likely to honor a request for a change in custodial parent. Parent may also request a judge to modify custody orders for younger kids on the basis that an older child has requested change in custody.

If non-custodial parent can meet its burden in proving that custodial parent has become unfit or unable to take care of a child, custody modification may be granted. Furthermore, if the situation is serious as in custodial parent has mental illness or drug dependency and this will affect child’s safety, custody modification may be granted.

Process to modify child custody can be very complex. A child needs affection of both parents. When it comes to modifying child custody, it can be a roller coaster ride. Therefore, it is advised to consult your local family law attorney with any questions or concerns you may have.

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Uncontested Divorce in Georgia

Posted by on Aug 25, 2016 in Uncategorized | 0 comments

Uncontested Divorce in Georgia

Thinking of getting an uncontested divorce, and not sure how to proceed further?  Uncontested divorce may be a suitable option for you, but it may also not be an option at all.

What is an Uncontested Divorce?

If you think uncontested divorce may be suitable route for you, then it is important to understand what happens during an uncontested divorce proceedings. In an uncontested divorce, both parties are in total agreement as to the division of their marital property and all other terms prior to filing the petition for divorce. However, uncontested divorce may not always be the right route for everyone. While it is likely to be appropriate for a couple with no minor children and no significant assets, under the right circumstances, it is an available remedy for couples with children and significant property, as well.

Things to consider during an Uncontested Divorce

Couples should consider and agree upon all material terms of the settlement agreement before filing the petition. Material terms include such categories as: (1) child support; (2) custody and visitation (this includes agreement to a parenting plan); (3) debt allocation; (4) spousal support; and (5) division of real and personal property. After an agreement is reached, either party may file the petition for the divorce. Any name changes that either party wants to make, needs to be included in the petition. As with a contested divorce, the petition must be filed in the county where the couple reside or if the couple lives in different counties, where the non-filing spouse resides. The person who files the petition for divorce is the plaintiff and in an uncontested divorce, this is the party being represented by the attorney. The same attorney will not represent both parties but because the divorce is uncontested it is unnecessary for both parties to have representation.

Benefits of an Uncontested Divorce

There are several benefits of getting an uncontested divorce. This is the quickest, easiest, and the least expensive way to obtain dissolution of marriage. Since the parties in an uncontested divorce have already agreed to the terms of the settlement agreement, the agreement is filed at the same time as the original petition. In state of Georgia, few additional forms are required to be completed, including a detailed statement of each party’s financial situation. Filing fees are around two hundred twenty dollars ($220), and there may be additional administrative fees that vary from county to county. In some limited circumstances the filing fee and administrative fees can be waived.  If the judge agrees that there are no discrepancies as to the terms and other information within the paperwork, he or she will sign off on the agreement. The divorce is then generally granted 31 to 60 days later. Since there is no trial, much less personal information is made public and neither party has to fear an airing of “dirty laundry” within a public forum. Most attorneys charge a flat fee for the most basic uncontested divorce cases because there is limited and predictable required work in the case and the end date for the case can be estimated. This makes uncontested divorce, far and away, the most affordable option.  However, assets, debts and complex child custody issues can make an uncontested divorce more complex and more costly than the simplest of cases.

Disadvantages of an Uncontested Divorce

While there are many benefits to filing for an uncontested divorce, there are also potential pitfalls. A quick divorce process may tempt couples to make a rash decision that is not well thought out thus leading to disputes in the future. A later modification of the settlement agreement will require going back to court. This is why it is essential that couples truly agree on the terms at the time of filing.

Uncontested divorce is a solution for a very specific group of couples. If either one or both parties are acting irrationally, an uncontested divorce is absolutely not an option. If there is any history of domestic violence or abuse in the marriage, the couple is not on equal footing and therefore, an uncontested divorce is not appropriate. This process requires complete diplomacy from both parties and is best suited for couples that have reached a mutual understanding and wish to walk away amicably. In order to reach a settlement agreement prior to filing, the couple will have to cooperate and each person will make compromises for the luxury of being able to walk away from the marriage quickly.

If there are major issues concerning property division or child custody, the divorce inherently is not uncontested because these are issues that will need to be litigated. This is not to say that couples with large assets or children cannot get an uncontested divorce. Indeed, if the couple is capable of exhibiting the requisite diplomacy and peaceful negotiation, this option is truly in the best interest of the children because it is over quickly and quietly. Although uncontested divorces are easier to obtain, it is never advisable to represent yourself. Divorce proceedings cause emotions to run high and the uncontested divorce presents the temptation of making hasty decisions in an effort to quickly move the process along.

For these reasons, it is very important to hire an attorney in order to have an objective party advocating for your best interests. If you are the unrepresented party in an uncontested divorce, there are some measures you can take to ensure you are equally protected:

  • Do significant independent research on the process of uncontested divorce;
  • Speak with a trusted friend or advisor and tell them your goals in coming to a settlement agreement;
  • Have that same friend act as a consultant and look over the final agreement before you sign. The above measure taken by both parties will ensure the divorce is done properly so that both parties can peacefully move on with their lives.

Based on the information presented above, an uncontested divorce may or may not be the proper route for you. An experience divorce attorney can help you determining whether you should go ahead with uncontested divorce or not. This article is written for general informational purposes only and highlights some of the things to consider in an uncontested divorce.  It is advised that people seeking an divorce contact an experienced divorce and family law attorney before making any major decisions.  Call us at 770-609-1247 to speak with one of our experienced uncontested divorce lawyers today.

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FAQs: Divorce in Georgia

Posted by on Jun 10, 2016 in Uncategorized | 0 comments

FAQs: Divorce in Georgia

Do I have to live in Georgia to file for a divorce in Georgia?

Yes. At least one of the parties (spouses) must live in Georgia for at least six (6) months to file for divorce in Georgia.

What if my spouse does not want a divorce?

This does not matter. If one party wants a divorce, that party may file for the divorce regardless of the other party’s position. This will be a contested divorce and may take longer to resolve.

What are the grounds for divorce in Georgia?

Georgia does not require a finding of fault for divorce. Parties commonly cite “irreconcilable differences” as grounds for the divorce.

 

>>>> A complete list of the grounds for divorce can be found here. >>>>

 

What if one party is at fault?

Georgia allows for fault-based divorce on several grounds, including: adultery, drug addiction, and imprisonment. A finding of fault will likely impact support order and custody agreements. For example, in Georgia adultery is a complete bar to an alimony award.

Do I have to hire a divorce attorney?

It is possible to appear pro se (without an attorney) but it is not advisable, particularly where children are involved. A later modification to the agreement is very difficult (and likely expensive) to obtain and then only support agreements may be modified. The division of property will never be available for a modification once the judge signs the final decree. It is best to have the divorce done properly the first time to avoid going back to court later.

Do both parties need their own attorney?

That depends on whether your divorce is contested or uncontested. Uncontested divorces are where the parties agree to all terms prior to filing for the divorce. Uncontested divorces often do not involve children or significant assets. In this case, one party may hire an attorney to draw up the agreement and both parties will sign the agreement.

A contested divorce requires negotiation over the terms before the parties can come to an agreement. In the case of a contested divorce, each party must be represented by their own attorney because the dispute will likely need to be resolved through mediation or litigation.

I have only been married for a short time. Can I just get an annulment in Georgia easily?

Annulments are rare and usually on granted in cases of fraud.

Do we have to be legally separated to file for divorce in Georgia?

Yes, but a “legal separation” does not necessarily mean the parties are not living together. In Georgia, it depends on whether the couple considers themselves to be separated at the time.

Can I get alimony in Georgia?

Alimony or spousal support is available in Georgia but is decided on a case-by-case basis. The court will look at each party’s income and debts amongst several other factors to determine which, if any, party will pay alimony.

How will the court decide how much child support is to be paid?

Georgia courts universally use a child support worksheet to determine which party pays child support and how much will be paid. The worksheet balances the income and debts of each party to generate an amount of support.

What happens if I need more child support later?

Modifications can be requested every two years if a party has a “significant change in circumstances”. In the event that the paying party experiences a job loss, the request can be brought almost any time regardless of the two year time limit.

How will the court divide our property?

Georgia courts use equitable division to divide marital property. Marital property is anything purchased with marital funds. Property division is complex because some things will be considered marital property by the court, even where the parties do not consider the property to be marital. For this reason, couples with significant assets should always hire an attorney.

How do I change my name in Georgia?

A woman may return to her maiden name by including such a provision in the uncontested divorce agreement and courts order, or by asking the court for a name change in a contested action. This will be reflected in the final divorce decree, which the woman may then use as proof of the name change in order to change her name on her bank accounts, passport, social security card, etc.

How long does it take to finalize a divorce in Georgia?

The finalizing of the divorce proceeding is really up to the parties. An uncontested divorce is much shorter because the parties already agree on the terms but contested divorces are much more common. Often couples will blame courts and attorneys for drawing out the process but the reality is, the parties have total control over the length of the divorce proceeding. As soon as the parties can come to an agreement, the proceeding is over. Once the agreement if filed with the court, the judge will usually issue the final decree within forty-five (45) days.

Do I have to wait until the divorce is finalized to start dating?

Yes. Once the divorce is final, the parties are free to pursue new relationships. However, this is strongly discouraged while the divorce is in process.

Do you have more questions about divorce in Georgia and the divorce process?

If you have any questions about the divorce process in Georgia, contact us at 770-609-1247 to speak with one of our experienced divorce and family law attorneys.

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Georgia Divorce and the Out-of-State Spouse

Posted by on Nov 12, 2015 in Uncategorized | 0 comments

Georgia Divorce and the Out-of-State Spouse

Filing for divorce can be a arduous process, especially if you or your spouse lives in a separate state or they cannot be found.  Below are some tips for obtaining a divorce if you find yourself in a similar situation.

My spouse lives in Georgia and I do not, how can we file for divorce?
The important part here is who is filing for divorce.  If you are the one filing for divorce, you need to find out the requirements for divorce in the state you currently live in.  If it is your spouse who lives in Georgia. then they will need to meet the residency requirements to be able to file for divorce in Georgia.  Usually, the divorce case should be filed in the state of residence of the defendant if it a contested case.  If it is an uncontested divorce case, it can usually be filed in the state of the defendant or plaintiff.  Georgia courts usually have no problem with a Georgia plaintiff filing an uncontested divorce in Georgia no matter where the defendant spouse lives.

But in Georgia, at least one of the parties must meet the residency requirements.  The residency requirements of Georgia are that the person must be a verified resident of Georgia for at least six (6) months before the divorce case can be filed.  In order for your divorce to be effective, the court where you file for divorce must have jurisdiction over you and your spouse.  The court gains jurisdiction over your out of state spouse if following have occurred:

  • you have the divorce papers served to your spouse in person, or
  • if your spouse consents to jurisdiction by appearing in the court where you filed the case, or
  • or your spouse signs an affidavit confirming that he or she has received the divorce papers and consents to jurisdiction (called an “acknowledgement of service”)

I live in Georgia and my spouse lives in a different state, how does this affect our divorce?
The first thing that needs to be established are residency requirements, if you meet the residency requirements of Georgia and your spouse does not meet the residency requirements of their new state and you want to begin the divorce process as soon as possible, then you should be the one file for divorce.  Usually time is of the essence in a case like this, and speaking to an attorney as soon as possible is advised.  Once the process has begun, the defendant (the spouse that lives out of state) will be under the jurisdiction of the Georgia court.  If your spouse is in agreement with the divorce, then they can simply sign an ‘acknowledgement of service’ and they will be under the jurisdiction of the court and the divorce can proceed.

But I cannot find my spouse and they will not sign an Acknowledgement of Service.
However, if your out-of-state spouse will not sign an ‘acknowledgement of service’ you will have to turn to the other common methods of service.  One way is the ‘Long Arm Statute’ which allows for jurisdiction over the defendant with respect to proceedings for divorce, if the parties maintained a matrimonial house in Georgia at the time of the commencement of the divorce action or if the defendant resided in Georgia before the commencement of the action, regardless of whether the parties were living in during that time.  This means that if you and your spouse jointly owned the house you lived in while married they are subject to the court’s jurisdiction.  However, your spouse will still need to be served with the divorce papers.  This can be done with a process server or sheriff if you know where they live or through publication if you cannot locate your spouse.

It is also important to note that if none of the above applies and your spouse is not subject to the ‘Long Arm Statute’ the marriage can still be dissolved.  However, any matters regarding the division of marital assets, child support, and alimony will usually not be decided until you actually have service on your spouse.

If you are facing divorce and need an experienced and caring divorce attorney to help guide you through the process, call us at 770-609-1247 to discuss how we can best help you.

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How to Identify and Avoid Bankruptcy Fraud

Posted by on Jul 24, 2015 in Uncategorized | 0 comments

How to Identify and Avoid Bankruptcy Fraud

Filing for bankruptcy is becoming more common these days.  One of the main reasons is because the moment bankruptcy is filed any requests from creditors will be halted while the process is ongoing.  They cannot try to sue you or take any of your property to settle any debts you might have with them.  The creditors will have to go to the court in which the petitioner filed for bankruptcy where a judge will determine how the debts will be settled.  During the bankruptcy process the petitioner will be asked to list all of their debts and all of their assets.  There is the possibility that that some property will be liquidated to satisfy your debts.  Should the filer attempt to conceal any assets or improperly influence the proceeding in any manner, they will have committed bankruptcy fraud or a bankruptcy criminal crime, which is a federal offense.

Consequences of Bankruptcy Fraud
It is possible to punish bankruptcy fraud with either criminal or civil penalties.  If the court appointed trustee that is in charge of the filer’s case believes that fraud has been committed, then they can request that a civil penalty be imposed on the filer, which usually does not involve jail time.  However, if the fraud that has been committed is severe, then the trustee could pass the case onto federal prosecutors who can impose criminal punishment such as jail time.

Criminal and Civil Penalties
Civil penalties typically include the forfeit if the filers discharge rights. This means that your debts will not be discharged at the end of the filer’s case which in turn means that the creditors will be able to sue the debtor and take property to settle debts or attempt to collect their debts by various means.  There can also be a loss of exemptions meaning that assets that would normally be exempt from collection from creditors will no longer be protected.  If the filer is found guilty of bankruptcy fraud and is convicted, then there is the possibility of getting up to five years in prison. Five years is the maximum sentence the court can impose.  However if there is more than one offense, it can be up to five years per offense.  It is also possible to get probation for committing bankruptcy fraud, which usually involves keeping out of any trouble and maybe meeting with a probation officer a couple of times; a probation sentence can last up three years, although longer sentences are possible.  It is also possible to be fined for committing fraud; the maximum that a court can impose is $250,000 per offense.  Fines can be imposed by themselves or on top of other criminal penalties.

Hiding Assets
The most common form of bankruptcy fraud is when the person who filed for bankruptcy tries to hide assets or tries to mislead the court as to what property the filer actually has.  When the filer initially files for bankruptcy the court will ask for an inventory of all your assets called a bankruptcy estate.  This is done so the trustee can determine how much you are able to pay the creditors. The common purpose for some people deciding to hide their assets is so that they don’t have to give certain property up or so they can make a smaller payment.

Avoiding Foreclosure Scams
Typically, if a person is facing foreclosure on their house, they will try to do everything they can to make sure their family and themselves continue to have a home.  There are some companies that are aware of this and decide to try to make some money. They tell the homeowner that they can remove the foreclosure on their home if they pay a certain amount of money.  The fraud that is committed here is that after the company has been paid, they will file for bankruptcy in the name of the homeowner, sometimes without permission or even informing the homeowner. It is true that filing for bankruptcy will put a hold on the foreclosure, but one the court is aware that the homeowner was not a knowing member of the filing, the case will be dismissed and the foreclosure will resume.

Bribes
Attempting to bribe a creditor, the trustee, or anyone involved in the bankruptcy case can be considered bankruptcy fraud.  A bribe may occur when the filer attempts to convince a creditor to not file a claim against them when bankruptcy is filed by offering them some kind of monetary payment.

Giving False Information
Committing bankruptcy fraud is not an accident. Should the filer forget to list a gift that was received but never used, for example an old car from a family member.  If that gift was kept in storage for a long time and the filer simply forgot to list it then it is not fraud.  However, if the filer intentionally put the car into storage and knowingly forgot to list it, that is fraud.

Fraud In General
Bankruptcy fraud can be a broad range of things, but if you are unsure whether something is considered fraudulent or not, remember that if what you are doing can be considered taking advantage of the bankruptcy process in any way, odds are that it can be considered fraud. Some examples are, using your credit card to buy items with the sole intention of filing for bankruptcy and not paying off your credit card, getting rid of important documents, filing for bankruptcy in separate states at the same time, or giving false reports to anyone in the court.  It is good to know that creditors can also commit fraud by giving false reports or making false claims about the debtor.

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Tax Refunds and Bankruptcy

Posted by on Jun 22, 2015 in Uncategorized | 0 comments

Tax Refunds and Bankruptcy

Bankruptcy and taxes can be a difficult subject and it can have some serious consequences. One of the most commonly asked question is what will happen to my tax refund if I file for bankruptcy? There is no straight answer to that question, what happens to your tax return depends on what chapter you file your bankruptcy under. Filing under chapter 7 will probably protect the tax refunds while filing under chapter 13 could possibly mean less protection for your refund.

Tax Refunds in Chapter 7 Bankruptcy
When filing for bankruptcy your tax refund, whether already received or expected for that year, will be considered an asset. As with other exempt assets, if your tax refund is considered exempt the bankruptcy trustee will not be able to take it. Since the allowable exemption amounts for various assets vary from state to state, the amount of your tax refund that you can exempt depends on your state. If your state does not have a specific exemption for tax refunds, you may be able to use the wildcard exemption, which can be used to protect any asset. If you are still concerned about your refund during the bankruptcy, the timing of when you file is also important. Filing for bankruptcy during tax season can be a bit tricky, if you do file during tax season look into what exemptions your state offers. To get most use out of your refund consider using it to pay your legal fees for filing bankruptcy. If you file for bankruptcy at another time of the year, it could be a little more problematic if you are expecting a big refund. Another way to protect a tax refund is to defer more of your salary into an employer IRA or 401k.

Tax Refunds in Chapter 13 Bankruptcy
In a chapter 13 bankruptcy, your tax refunds will be analyzed by the trustee during the length of the plan, which can last anywhere from 3 to 5 years. If your plan pays less than 100% of your debt back to creditors, the trustee has the discretion to keep your tax refund during the life of the plan. Since chapter 13 requires that all disposable income be paid into the plan, most trustees classify tax refunds as disposable income. But keep in mind that even though your refund is being paid into your repayment plan, your plan payment will not actually be reduced.

Since determining what to do with your tax refund is largely discretionary, your trustee may allow you to keep the tax refund in special circumstances, for example the refund is needed to pay your living expenses because you find yourself in a situation. However, keep in mind that the trustee will most likely require you to contribute your tax refund as part of your plan payment. There is almost no way to keep your refund is the trustee has decided that it will go towards your repayment plan.

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