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Frequently Asked Legal Questions

The information on this page will provide you with basic information and answers to some frequently asked questions. However, this information is not legal advice and is not meant to be a replacement for competent legal counsel. There are no two cases alike, and as such, you need legal advice that fits your needs. The Law Office of Travis Van Winkle is here to provide you with the advice you need to face your situation.

Bankruptcy and Debt Resolution

Do I really need a bankruptcy lawyer?

Many people have made the mistake of thinking that filing bankruptcy is an easy process and something they can handle on their own. As an Indiana bankruptcy firm, we often receive calls from people who have filed their own bankruptcy proceeding only to realize they are in over their heads. It is important that you have competent counsel to assist you through this difficult and complex process.

Will I qualify for a Chapter 7 bankruptcy?

We will discuss about your income, assets and debts. During our consultation, we will work with you to determine if filing bankruptcy can help you. In order to file a Chapter 7 bankruptcy, you must pass a means test. This test is designed to determine whether you have sufficient funds left over after your necessary living expenses to pay toward your debt. There are time limitations for filing a new bankruptcy case if you have filed a previous bankruptcy.

Our recommendations will be based on the particulars of your situation. It is important to understand that while no two situations are the same, we can normally find a solution to resolve most everyone's financial problems – even solutions that do not include bankruptcy.

If you do not qualify for a Chapter 7, we will show you the potential benefits of filing Chapter 13. We can also help you to understand your debt settlement options aside from bankruptcy.

Can I discharge my tax debts?

You can discharge federal income tax debt in a Chapter 7 bankruptcy only if ALL of the following conditions are met

  • The taxes are income taxes. Taxes other than income, such as payroll taxes or fraud penalties, can never be eliminated in bankruptcy.
  • You did not commit fraud or willful tax evasion. If you filed a fraudulent return or willfully attempted to evade paying taxes, such as by not filing your returns or lying about your exemptions, then the taxes will not be discharged.
  • The debt is at least three years old. The tax return must have been originally due at least three years before you filed for bankruptcy. For instance, in order to discharge a 2010 tax debt, you must wait to file until after April 15, 2013.
  • You filed a tax return. You must have filed a return for the debt you wish to discharge at least TWO years before filing for bankruptcy.
  • You pass the "240-day rule." The tax debt must have been assessed by the IRS at least 240 days before you file for bankruptcy protection (or must not have been assessed yet). (This time limit may be extended if the IRS terminated collection efforts because of an offer in compromise or a prior bankruptcy filing.)

If you end up filing a Chapter 13 bankruptcy proceeding and meet the above referenced criteria, your personal tax debts will be treated as a regular unsecured creditor. They will not be entitled to special treatment and will share in any unsecured creditor dividend (usually less than 20 percent of the debt owed). Priority taxes (those that do not meet the above criteria) can be paid over the life of the Chapter 13 plan. However, these priority taxes will need to be paid in full.

Are there certain things I should or should not do if I decide to file?

There are definitely certain things you should or should not do if you are going to file bankruptcy. For instance, if you owe money to a relative, you must not repay that relative before filing. In the eyes of the court, the relative deserves no better treatment than a credit card company. If you pay the relative, you can expect the trustee assigned to your case to pursue that relative to recover the money. You should notify your counsel before changing jobs, selling property or buying property. You should not dispose of your property by means of gift or concealment. You should not run up debt or incur new debt with the plan to file bankruptcy. The reality is that the do's and don'ts are too numerous to list here. You should not make any major changes regarding your financial life without first consulting with your bankruptcy attorney.

Will I lose my retirement account if I file bankruptcy?

The vast majority of retirement accounts are protected by the bankruptcy code. You will be able to keep your various retirement accounts assuming they are ERISA-qualified plans. Most plans offered by employers are ERISA-qualified and will therefore be an exempt asset. If you have inherited or received a retirement account as part of a divorce proceeding, the answer to the question may require more investigation.

Will I lose all of my property and my house if I file bankruptcy?

The quick answer is no! You will not lose all of your property if you file bankruptcy. Individuals and couples are entitled to exempt a certain amount of property during the bankruptcy proceeding. Those exemptions for individuals are currently: $350 in cash or cash equivalent (also called intangible) assets, such as bank accounts; $9,350 in personal property (home furnishings, jewelry, cars, motorcycles, etc.); and $17,600 in equity in his or her home. The exemptions are doubled when a husband and wife file a joint bankruptcy. The reality is that most people are able to keep all (or almost all) of their property through the bankruptcy process. It is important to understand that it is possible for someone filing bankruptcy to lose some property. The most common property that can be taken by the court is a portion or all of one's state and federal income tax refunds for the tax year in which the bankruptcy was filed. It is also important to remember the court will value your property after deducting the amount of any security interest against the property.

Does my spouse have to file with me?

Your spouse is not required to file bankruptcy with you. While your spouse does not have to file with you, his or her income must be taken into consideration by the court if the two of you live together. For that matter, the income of anyone living in your household must also be considered assuming you are functioning as a family unit.

How long will it take me to rebuild my credit?

The answer to this question depends on how you handle your credit after the bankruptcy filing. If you timely pay your debts and keep your use of credit to a reasonable level, you will be able to rebuild your credit in approximately two to three years. It can also be beneficial to your credit score to reaffirm certain secured debts, such as a house or car loan. This will ensure positive reporting to the credit bureaus immediately after your bankruptcy filing.

Does bankruptcy stay on my credit report forever?

No. A bankruptcy filed under Chapter 7 or a dismissed Chapter 13 will remain on your credit for a period of 10 years from the date of filing. A discharged (completed) Chapter 13 bankruptcy generally remains on your credit profile for seven years from the date the case is filed.

Divorce

The information on this page will provide you with basic information and answers to some frequently asked questions. However, this information is not legal advice and is not meant to be a replacement for competent legal counsel. There are no two cases alike, and as such, you need legal advice that fits your needs. The Law Office of Travis Van Winkle is here to provide you with the advice you need to face your situation.

What will happen at my initial consultation?

For most people, meeting with an attorney is not a frequent occurrence. We understand people are usually coming to see us at a time when they are facing some rather stressful issues. We will try to bring a sense of calm to the table. We encourage you to bring a list of questions to the consultation. There are no questions off limits. You are paying for the consultation, so be sure to ask what you want to know. We will also spend some time discussing your options and what you can expect during the process. Remember this is the time for you to determine the best course of action for you and your family. You can expect the consultation to last an hour to an hour and a half. The consultation should also help you determine whether our firm is a good fit for you and your case goals. If you decide to retain our office, you will need to sign a retainer/representation agreement and pay the initial retainer fee. You will not be pressured by our office to retain our services. You can pay your consultation fee and take the time you need to make your decision. If you do not feel certain that our firm is the right firm for you at the time of your consultation, then we encourage you to take some time to meet with other attorneys to help you make the right decision. You are free to bring family or friends to the office with you on the day of your consultation for emotional support. We recommend that whomever you bring to the office remain in the waiting room. Should you need to talk to your support person during the consultation we are happy to give you the time to do so. Conversations between a client and attorney are privileged and protected from disclosure. This ensures full disclosure of important information. If a third party is present when the attorney and client communicate, the privilege is lost and the third party can be forced to testify about what he or she heard during the communication. There is also a chance (albeit a small chance) that you could have a falling out with your support person in the midst of your case and that person could divulge your conversation to the other side.

What do I need to bring in when I come to meet my attorney at the initial consultation?

The answer to this question depends on where you are in the process of your case. If you have questions (and you most likely do), we recommend you bring a list so you are sure to not forget anything. If the case has already been filed with the court, you should bring whatever paperwork you have received. If you have the following documents accessible, you can bring them with you as we will ultimately need them in order to resolve your case: (a) current income information for both parties (paycheck stubs, profit and loss statements, etc.); (b) recent tax returns; (c) proof of child-related expenses (child care, insurance, health care, tuition, etc.); (d) documentation regarding assets and debts (e.g., list of personal property, 401(k) and other retirement statements, real estate appraisals, jewelry appraisals, loan statements, mortgage statements, credit card statements, bank account statements, etc.); (e) previously issued court orders regarding this matter; (f) previously issued court orders regarding a duty to pay child support for children not of this relationship; (g) documents regarding any ownership in a corporation, limited liability company or other business entity; (h) documents regarding any inheritances or interests in a trust for either party; and (i) any other documents you think might be relevant.

Can I represent myself?

You are allowed to represent yourself in court. However, it is strongly discouraged. Judges can quickly grow frustrated with the person who represents herself/himself (referred to as a "pro se" litigant). Not knowing how to properly introduce documents into evidence or properly question a witness can have devastating consequences. You should also keep in mind that the judge will expect you to have the same understanding of the law as that of an attorney.

What is the difference between a divorce and a legal separation?

A divorce will result in a complete dissolution (end) of a marriage. A legal separation leaves the marriage intact unless one of the parties requests that the court convert the case to a divorce. The procedures are similar to those necessary for a divorce. The parties may be able to enter into an agreement setting forth the terms of the legal separation. If the parties are not able to reach an agreement, the court will issue a Decree of Legal Separation, which will be effective for a period of one year. The legal separation will give each spouse the time he or she needs to work on saving their marriage while having a "playbook" to control issues, such as custody, parenting time, payment of debts and possession of assets.

Do I need a reason to get a divorce?

You do not need a reason to get a divorce aside from believing your marriage is damaged beyond repair (this is what the courts refer to as "irretrievably broken"). Since Indiana is a "no fault" state, issues of adultery, mental or physical abuse or abandonment do not need to exist in order to get divorced.

How long must I live in Indiana to be able to file for divorce?

One of the parties to the divorce case must have resided in Indiana for a minimum of six months immediately before the filing of the case. One of the parties must also live in the county for three months immediately before the filing of the case unless the parties agree to file in another county.

Does it matter which spouse files first?

While there may be tactical reasons to file first, the court does not give any type of preferential treatment to the first party to file. Keep in mind that the person who files the case is generally required to pay the court's filing fee (filing fees range from $141 to $161 in the Indianapolis metropolitan area).

Can my spouse and I use the same attorney?

It is not possible for the same attorney to represent both parties to a divorce. In a divorce, each spouse has certain rights and/or obligations. It is not possible for an attorney to represent both parties because of the inherent conflict between the rights and obligations of each party. This does not mean the attorney cannot help his/her client and the spouse work out a resolution of their case. The attorney should make sure the other party fully understands the attorney is not representing his/her interest. The attorney should also let the other party know they have the right to their own attorney.

How long do I have to wait before my divorce can be final?

In Indiana, there is a mandatory 60-day waiting period before your divorce can be finalized. It is uncommon for a divorce to actually be finalized in the 60 days. The reality is that most divorce cases take a considerably longer period of time to finalize. This is especially so in cases where the parties have a considerable degree of hostility toward one another or have complex financial holdings.

Do we have to go before the court to finalize the divorce?

It is not necessary to appear before the court in order to finalize your case. However, if you are not able to come to a written agreement, then a hearing at which the judge hears testimony and evidence must take place.

What is mediation and how does it work?

A growing number of Indiana courts now require spouses to mediate the disputed issues in their case. The mediation is conducted by a third-party attorney. The parties normally share equally in the cost of the mediator. The mediator works with the parties and their attorneys to help them reach an agreement on the contested issues. The mediator is often able to help the parties resolve their differences by bringing a different perspective to the table. Since the mediator practices law as well, he or she can help the parties understand how the judge would view a certain issue. Most clients are hesitant to voluntarily participate in mediation, but it can often allow the parties to resolve the case without the emotional and financial toll of a trial.

What should I wear to court?

It is important that you show the judge you understand the significance of appearing before him/her. Therefore, we recommend you dress conservatively and professionally. A suit and tie for a man or a conservative dress or pant suit for a woman is appropriate. If you do not own appropriate professional clothing, it is not necessary to purchase some. Instead, business-casual clothing, such as dress pants or khakis and a nice shirt, should suffice. Casual attire, such as shorts, t-shirts, jeans, short shirts, tank tops and sandals, are not appropriate. Women will want to avoid low-cut, revealing or exceptionally form-fitting clothing. You want the judge to have a positive first impression of you.

What if my spouse does not want to get divorced?

The divorce will take place as long as one spouse wants it even if the other spouse does not want to get divorced. A common tactic employed by the spouse that does not want to get divorced is to become extremely argumentative and uncooperative through the process. This will result in the case taking more time to finalize.

My spouse has asked me to move out … should I do it?

The answer to this question depends on your goals with respect to the outcome of the case. If you want custody of your children, then it would almost certainly be a bad idea to voluntarily vacate the home. The court typically prefers to leave the children in the home to avoid disruption. Thus, if you have moved out and left the children in the home with your spouse, there is a good chance the court will grant custody to the spouse. If you want possession of the house, you should stay in the house as it is normally not advisable to act in a way that is contrary to your desired outcome. Your safety must come first. Thus, if needed, you could vacate if you and/or the children are in danger.

Can I have my marriage annulled?

Annulments are allowed in very limited circumstances under Indiana law. Typically, you must prove to the court that the marriage was "brought about by fraud." While this seems like a simple thing to prove, the reality is that it is very difficult. You must be able to show the court that absent the fraud, you would not have entered into the marriage. We often hear things along the lines of "I would not have married him if I had known he is a jerk." This will not be sufficient. An example of something that often rises to the necessary level of fraud is willfully lying to your would-be spouse about your ability to have children when it is abundantly clear your would-be spouse fully expects to have children.

Can I incur debt and/or use my credit cards during the divorce process?

Until such time as a court orders otherwise, you are free to use your credit cards and/or incur debt. However, it is important to keep in mind that any debt you incur after the filing of the divorce case will be your sole responsibility to pay. It is common for the parties to agree or the court to order each spouse to not incur any debt in the name of or joint with the spouse.

Do I have to file a joint tax return with my spouse?

It is often in the best interest of both parties to file a joint tax return for the last tax year before they are divorced. The primary reason for this is that a large number of tax deductions and exemptions are not available if your filing status is married but separate. However, we recommend you and your spouse consult with a qualified accountant. If you are to receive a joint refund, it is important that the court approve an agreement between the parties regarding the use of the money or you ask the court to issue an order in the event an agreement cannot be reached.

Child Support

The information on this page will provide you with basic information and answers to some frequently asked questions. However, this information is not legal advice and is not meant to be a replacement for competent legal counsel. There are no two cases alike, and as such, you need legal advice that fits your needs. The Law Office of Travis Van Winkle is here to provide you with the advice you need to face your situation.

How much child support will I have to pay/receive?

Child support orders are governed by the Indiana Child Support Guidelines. The support amount is arrived at with the goal of allowing the children to enjoy the standard of living they would have enjoyed if their parents were still together.

Child support is based on a number of variables. The starting point is determining the gross weekly income of each parent. Depending on the circumstances, this can either be a simple process or a rather complicated one. A parent's gross weekly income takes into account all types of income. Aside from determining gross weekly income, we must also determine whether either parent has other children (prior born and/or subsequent), child support orders for those children, the cost of work-related child care, and the cost of providing health insurance for the children. The number of overnights the children spend in the home of each parent is also something that must be determined to arrive at the child support figure.

Why does my spouse get a "parenting time" credit for overnights he or she has with the children?

The parent who has the children with him or her on any given day is responsible for feeding the children, transporting the children, providing spending money and incurs additional utility expenses. The credit received by the parent paying support is intended to offset the expenses he or she incurs during parenting time.

How will I receive my child support?

Most courts now require support to be paid via an income-withholding order. This results in the parent's employer being ordered by the court to withhold the child support from his or her wages. The money is then sent to the Indiana State Central Collection Unit, where it is then sent to the support-receiving parent. In addition to ensuring support is timely paid, utilizing an income-withholding order also ensures both parties and the court have a record of all support payments made.

What can be done to a parent who fails to pay child support? 

The court has a number of options available to pursue a parent who fails to pay support. The most common of these is holding the parent in contempt. This can result in the parent being ordered to pay the other parent's legal fees. It can also include being ordered to perform community service or face an "all pay or jail" order. If the parent fails to make all payments required after the issuance of an "all pay or jail" order, he or she will be incarcerated. The parent will also be given a purge bond equal to the support arrearage or a large part thereof. It is always interesting to see how quickly a parent is able to begin making regular support payment or raise a large sum of money to avoid jail.

The court can also intercept the parent's tax refund checks, place liens on property and/or suspend a driver's license or other professional licenses. The court can order the parent to apply for jobs and provide proof of all attempts to secure employment.

What if the parent who pays support moves to another state?

The prosecutor's office in the county that issued your support order can have the prosecutor's office of the state where the parent has relocated initiate a reciprocal enforcement action. The prosecutor's office would then file a case in the new state and enforce the existing support order.

How often can child support be modified?

In most circumstances, child support can only be modified once every 12 months. In order to be successful in seeking a modification of support, the new support figure must be at least 20 percent (20%) higher or lower than the current support order. In certain circumstances, you can modify child support even if it has not been 12 months since the last support order. The most common example would be where the parent paying support has become unemployed.

What is the age of emancipation?

As of July 1, 2012, the age of emancipation is 19 years of age. This means that your duty to pay child support will end on the child's 19th birthday. Keep in mind, this does not mean you can simply stop paying support or unilaterally reduce your support. Instead, you should file a pleading with the court seeking an order to terminate or reduce support. There are certain events that will result in emancipation. Some examples include marriage or joining any branch of the military. Support can also be terminated at 18 years of age if your child has been out of school for at least four (4) months, and is not enrolled in or attending a postsecondary educational facility.

The Law Office of Travis Van Winkle
101 W. Ohio St.
Suite 2000

Indianapolis, IN 46204

Phone: 317-643-2080
Fax: 855-237-0960

Business Hours:
Monday-Friday, 9 a.m.-5 p.m.
Evenings and Weekends by Appointment Only