Family Law FAQ’s
WHO CAN FILE FOR DIVORCE?
Anyone who has been a resident of Louisiana for at least one year can file for divorce. Residents of Louisiana can file for divorce even if they are living outside the state, as long as they maintained their residency. The “Petition for Divorce” (legal paperwork requesting a divorce) must be filed in the parish where either spouse resides or where the couple last lived together.
Couples who entered into a “covenant marriage” are required to seek marital counseling before filing for divorce. A covenant marriage is based upon the belief that couples often end their marriage without attempting to resolve their conflicts. The pair agrees to attend premarital counseling before they get married and enter counseling when marital problems arise.
IS SEPARATION NECESSARY?
In short yes. The State of Louisiana requires divorcing spouses to live separately for 180 days if there are no children from the marriage. However, if the couple has children, they must live separate and apart for at 365 days before a divorce will be granted.
HOW LONG WILL MY DIVORCE TAKE?
There are two types of divorces, a 102 and 103. You can file either at the beginning of the separation which is known as a (102 divorce), or you can file once the time period required by law is up also known as a (103 divorce).
A no-fault divorce can be granted in Louisiana if the spouses have lived separate and apart for at least 180 days and do not have minor children from the marriage. Couples who have minor children from their marriage are required to live separate and apart for a continuous period of 365 days before a court will grant a divorce.
Personal Injury FAQ’s
DO I NEED A PERSONAL INJURY LAWYER FOR MY PERSONAL INJURY CLAIM?
Insurance company studies show that those who have legal representation in their case on average recover around 3.5 times more than those trying to resolve the issue on their own. Insurance companies do not like to pay out large settlements, and frequently move fast with an offer, within days of a car accident or other serious injury accident. If you accept this early offer, it can be a terrible mistake; you may later require more medical treatment, or not recover in the expected amount of time, or could experience complications. Our firm has the ability to carefully evaluate your injury case and ensure that we are pursuing every type of damage that may be claimed in your case. It is very important that you have an attorney that will protect your right to fair compensation, and the Landry Law Firm will fight for fair treatment for you and your family. A personal injury lawyer is imperative if you suffered serious injuries. We are Louisiana attorneys that are interested in helping you resolve these issues.
WHAT IS CHAPTER 7 BANKRUPTCY?
A chapter 7 bankruptcy is also known as a debt liquidation. It wipes out all of the debt that the law permits to be discharged.
Chapter 7 bankruptcy is designed as an orderly, court-supervised procedure by which a trustee collects the assets of the debtor(s), reduce them to cash, and makes distributions to creditors, subject to the debtor’s rights to retain certain exempt property and the rights of secured creditors.
Because there is usually little or no nonexempt property in most Chapter 7 cases, there may not be an actual liquidation of the debtor’s assets. These cases are called “non-asset cases”. Usually a debtor with assets that they wish to keep and that are not covered by exemptions file Chapter 13 bankruptcy.
WHAT HAPPENS IN REGARDS TO HOME MORTGAGES, CAR LOANS, AND OTHER SECURED DEBT?
When you borrow money and give the lender a mortgage or lien on your property, you have a secured debt. If the money you borrowed was used to purchase the secured property, the lender is entitled to recover the security if you file a chapter 7 bankruptcy.
The debt will be discharged – you will not owe any additional money to the creditor – but unless you take additional steps, you will lose the property. If you have a mortgage loan, the lender will eventually be allowed to foreclose your mortgaged home/property. If you took out a car loan and gave a lien on the car to the lender, the lender will eventually be able to repossess the car. You can always choose to surrender the property rather than dealing with the hassle of a foreclosure or repossession.
You do have alternatives under Chapter 7 that allows you to retain your secured property. Before you file a Chapter 7 petition, you can negotiate with the lender to reaffirm the debt. The lender may be willing to extend your loan so that the payments are more affordable. The lender might also be will to rewrite the loan to include delinquent payments in the new loan balance.
If discharging your other debts will free up the funds you need to make payments on your secured debt, the lender might agree to reaffirm your loan despite your bankruptcy filing. This is known as a reaffirmation agreement. It is important that you negotiate with your lender before you file bankruptcy, because it is more difficult to negotiate the terms of a reaffirmation agreement after you file your chapter 7 petition.
Another alternative allows you to keep your property if you pay its current value to your lender. For instance if you owe a $5,000 balance on a car that is only worth $2,000 due to depreciation, you can keep the car by paying a lump sum of $2,000 to your lender.
WHAT ABOUT UNSECURED DEBTS?
Most debts you owe that are not secured by collateral, including most credit card debt, can be fully discharged in a chapter 7 bankruptcy. Some loans for which you gave collateral might also be treated as unsecured if you did not purchase the collateral with the loan proceeds.
WHAT DEBTS CANNOT BE DISCHARGED THROUGH BANKRUPTCY?
Some debts cannot be discharged in a chapter 7 bankruptcy, including most taxes, judgments for damages resulting from drunk driving accidents, alimony and child support arrearages, and students loans pending an exceptional circumstance.
WHAT IS CHAPTER 13 BANKRUPTCY?
A chapter 13 bankruptcy is also known as a debt repayment plan. While a chapter 7 bankruptcy wipes out the debt, the debtor who files a chapter 13 bankruptcy makes payments to a bankruptcy trustee over a period of three to five years. During that time, the debtor catches up on payments of the debtor’s secured debt and pays as much of the debtor’s unsecured debt as the debtor can afford.
When the plan is completed successfully, all unsecured debts are discharged.
WHAT ARE THE REASONS FOR CHOOSING A CHAPTER 13 BANKRUPTCY?
Some people may not be eligible to file a chapter 7 bankruptcy. If their income relative to their expenses is large enough to permit them to make monthly payments to their creditors as determined under the “means test”, the only bankruptcy available to them is a chapter 13 repayment plan.
However, even if an individual is eligible to file Chapter 7, it may be in their best interest to file Chapter 13 based on the following benefits of Chapter 13.
- Repayment of non-dischargable debts.
- Some kind of debts generally cannot be dischargable under Chapter 7. (Student loans, child support arrearages, taxes, etc.) Chapter 13 allows you to repay those debts over a period of years.
- Avoiding foreclosure and/or repossession
- If you fall behind on your mortgage or car loan and are facing the possibility of foreclosure/repossession, a chapter 7 bankruptcy might not help you keep your property. A chapter 13 plan can put collection efforts on hold to give you a chance to make up missing payments and keep your house or vehicle.
- Protecting co-borrowers
- If someone co-signed a loan that you discharge under Chapter 7, your co-debtor(s) can usually be held responsible for the balance of the loan. Including the debt in a chapter 13 plan can prevent the creditor from pursuing your co-signor for repayment of the loan.
- Repaying debts that are important to you
- Sometimes debtors do not want to wipe out their debt. They like to know that they have made their best effort to pay their debts, particularly if they owe money to friends, family members, or businesses with which they want to maintain a good relationship.
FAQ’s About A Last Will & Testament
WHAT IS A LIVING WILL?
A living will or declaration concerning life-sustaining procedures is effective only when a patient is diagnosed with a terminal and irreversible condition. In effect, the living will can prevent the maintenance of a person on a respirator, etc. The living will is effective at a time when the person is physically (medically) alive but cannot survive without extraordinary medical procedures.
DO YOU NEED A LAST WILL AND TESTAMENT?
A will is not effective until death; generally, the last one written by date is the one which will control, so it is usually a good idea that the last will made revoke all prior wills. It is not possible to make either an oral will or a will with someone else. A will may be olographic, which means entirely written, dated and signed in the testator’s handwriting; or it can be statutory, which means it is executed with certain formalities in the presence of a notary public and two witnesses. A will controls all the property (assets and liabilities) owned at the time of death, whatever and wherever, except for property that generally passes by beneficiary designation such as life insurance, annuities, IRAs and pension benefits. The estate of one spouse cannot be controlled by the will of the other spouse. Wills also can address estate or inheritance tax matters as well as many others beyond the scope of this brochure.