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Missouri statutes provide for certain circumstances in which a Court may award grandparents reasonable, legally enforceable rights of visitation with their grandchild (or grandchildren).   To do so the Court must find that it is in the child’s best interests to grant such visitation to the grandparents.

The statute outlines four situations in which the Court may grant visitation rights to grandparents:

1. If there are Divorced or Divorcing Parents – Whenever parents of the child file for a divorce, a grandparent has the right to intervene in a dissolution action solely on the issue of visitation rights. Grandparents also have the right to file a Motion to Modify a divorce decree when visitation with a grandchild is being denied to them after a divorce between the child’s parents has been finalized.
2. If there is a Deceased Parent – If one of the parents of the child is deceased, and the surviving parent will not let the mother and/or father of the child’s deceased parent have reasonable visitation with the child, the parents of the deceased parent can file an action in Court seeking reasonable visitation rights with their grandchild.
3. If the child has recently lived with Grandparents – If the child has resided with the Grandparent(s) for at least six (6) months within the twenty-four (24) month period immediately preceding the filing of the petition, grandparents can file a petition seeking visitation rights with that grandchild.
4. If the grandparent is unreasonably denied visitation with the child for more than 3 months – Grandparents have to be denied visitation with their grandchild for more than 90 days to file a court proceeding under this subsection. However, if the parents of the child are married and living with the child, then grandparents may not file under this subsection of the statute.

The statute which provides for grandparent visitation rights creates a rebuttable presumption in all actions filed under this statute that when the parents of the child are legally married and living together with the child that they, the parents, know what is in their child’s best interests.  However, this presumption can be rebutted with proper and sufficient evidence.

The Court will examine all of the facts and circumstances of each case, including, in the Court’s discretion, the wishes of the child.

The statute also provides that the judge may appoint a guardian ad litem to act as an attorney for the child and look out for the child’s best interests in these proceedings.  The Court may also order home studies be done to assist the Court in its determination of what is in the child’s best interests.

The Court will refuse to grant grandparent visitation rights if the Court finds that such visitation shall endanger the child’s physical health or impair the child’s emotional development.

In the event the Court sees fit to grant the petitioning grandparent visitation rights, the judge may impose reasonable restrictions and conditions on those rights.

The primary consideration at all times, in any court proceeding for child custody or visitation, is the best interests of the child.  Grandparents’ visitation actions are no different.

If our office can be of any assistance, please call us at (636) 937-4994.

If you are a regular user of Facebook and other types of social media and you are currently involved in a lawsuit of any kind or if you may in the future become embroiled in litigation, you should consider either closing your account and taking down all social media posts, or at the very least very carefully contemplating the possible effects each and every posting might have in any future litigation.

A social media post can have adverse effects in family law cases such as divorce or child custody and other sorts of litigation, and yes, even in your search for or retention of a job. It has become common practice to do internet searches for information on opposing parties, and often people that are involved in litigation will print out your social media posts for attempted use against you in a lawsuit.

For example, a social media post of your new car or boat, could alert a collection attorney who is trying to collect a debt from you of the existence of an asset that may be able to be seized when they try to collect on a judgment against you.

Postings that show you drunk frequently, or clearly show drug usage or paraphernalia or other illegal or undesirable behavior will often be used against you in a future child custody proceeding.

With regard to email and texting, these also must be used cautiously as you proceed through life. Remember that once you put anything into a written format such as this it is permanently there, and can be utilized by anyone as a statement made by you when it may adversely affect you in a lawsuit. There are more evidentiary problems presented to the attorney trying to use these sorts of communication in court, but often they can be overcome, and this evidence is often deemed admissible in one form or another.

Texting is an especially troublesome form of communication in litigation and family law matters such as divorce and child custody cases. This is because it is engaged in by the general public far too quickly. Receive a text, thumb type a response and instantly send a reply, all within a few seconds – without thought. Often angry exchanges take place in this fashion, threats are made, admissions are made, and curse words used. If you are angry or upset with the other party the best thing you can do is to use a 24 hour rule, walk away, sleep on it, and don’t respond until you have had time to compose your thoughts and cool down.

Whenever our office takes in a new divorce, child custody case or litigation matter of any sort, one of the first things we do is warn our client’s verbally about the dangers of social media, email and text communication, and we also mail out a letter to our new clients reminding them of the verbal discussion we have had with them about these matters. We also warn them to make sure they change passwords on any email account or social media account in the event that their passwords could possibly be known or guessed by the other party to any lawsuit or family law litigation.

Our office handles all sorts of family law matters including divorce, paternity cases, adoptions and child custody matters. We also handle bankruptcies, traffic, real estate law, contract law cases and other legal matters. Let us know if we can be of any assistance to you by calling us at (636) 937-4994.

What is an Exemption?

An exemption is a rule that helps you keep certain property such as a wedding ring or a car. Depending on the particular exemption rule, you may be able to save an entire item. Your attorney will review your list of property to see how much of it can be saved in the Bankruptcy process.

How to Calculate an Exemption Value

According to 11 U.S. 11 U.S.C. §§ 506 and 527(b), debtors and attorneys need to value an item based upon what a retailer’s price for the same item would be. Some good sources for comparing items of the same age and condition are the Kelly Blue Book, eBay, and Amazon. You need to determine an accurate replacement value for any item you hope to keep.

Married Couples May Double Certain Exemptions

Missouri allows married couples to double certain exemptions such as the one for cars. Missouri allows a $3,000 exemption for cars, but married couples can take a $6,000 exemption. Unfortunately, Missouri does not allow married couples to double the Homestead exemption which protects the equity in your home.

Trustee Can Abandon Some Non-Exempt Property

If the Trustee feels that a certain non-exempt item will not fetch enough at auction, you may be able to keep it. This decision is made by the Trustee, and is made on a case by case basis.

Exemptions in Chapter 7 Bankruptcy – Liquidation

In a Chapter 7 Bankruptcy, the Bankruptcy Trustee sells any property you own and in exchange you can get a fresh start. The Bankruptcy Trustee will sell anything you own outright to your creditors or others. However, exemptions may help protect your property.

For example: Sheila is unmarried, and filing for Chapter 7 Bankruptcy in Missouri. Sheila owns her own car free and clear of any loans. Sheila owns a 1997 Acura CL 2.2 Coupe 2D with 95,000 miles that has a Blue Book value of $1,684. Missouri has a $3,000 exemption for cars, and Sheila’s car is worth less than $3,000 so the car is SAFE due to Missouri Bankruptcy exemption laws.

Exemptions in Chapter 13 Bankruptcy – Reorganization

In a Chapter 13 Bankruptcy, the Bankruptcy Trustee works with you to reduce your debts so you can pay your creditors in either a 3-year or 5-year period. Also, in a Chapter 13 you get to keep your property, but you must use all of your disposable income to pay your creditors. The law requires that your creditors get just as much money as if you had filed a Chapter 7 Bankruptcy.

Your Bankruptcy Trustee will calculate the value of your non-exempt property.

Commonly Used Missouri Exemptions include but are not necessarily limited to:

• Household Furnishing, Household Goods, such as wearing apparel, appliances, books, animals, crops or musical instruments that are held primarily for personal, family or household use of such person or dependent of such person: $3,000.00.
• Wedding Ring: $1,500.00.
• Other Jewelry held primarily for the personal, family or household use of such person or a dependent of such person: $500.00.
• Any Motor Vehicles (Cars): $3,000.00.
• Homestead (if you own your house): $15,000.00.
• Wild Card: You can save any property up to $600.00 limit per person.

Each personal bankruptcy situation is unique. Bankruptcy can give a debtor a fresh start while saving some personal items.

If you reside in the St. Louis, Missouri or Jefferson County, Missouri area and are considering bankruptcy and believe you may qualify, please contact The Schwent Law Firm at (636) 937-4994 to set up an appointment to met with our Bankruptcy Attorney at our Festus, Missouri law office. We will be happy to assist you.

Chapter 7 Bankruptcy Secured & Unsecured Debt – Secured & Unsecured Creditors

Many people are overwhelmed with debt. And many people don’t know about the different kinds of debt.

If you are thinking about filing for bankruptcy, you need to list all your debts. And you need to describe your debts.

How do you describe debts? Debts are defined by:

• How you either borrowed the money; or
• How you bought and paid for a product; or
• How you agreed to pay for a service.

Examples:

Home Purchase: John buys a house using a mortgage from Acme Bank. The deal between John and Acme Bank allows John to buy the house over time, but Acme Bank has a documented financial lien (interest) against the house until John pays off the debt. The home purchase is a secured debt. The mortgage is a loan which is secured by John’s house.

Car Purchase: Suzy needs a new car, but needs a loan to buy one. Acme Bank agrees to loan Suzy the money in exchange for a secured interest in the car. The car loan is a secured debt. The loan is secured by Suzy’s car.

Credit Card: Milo wants a credit card for emergency purchases when he does not have enough cash to buy something outright. Acme Bank offers $5,000 in credit to Milo. In exchange Milo will make regular monthly payments including a fixed interest amount to Acme Bank. Milo buys lots of things with his new credit card. Milo gets a new scooter, bedroom set, clothes and other stuff. Acme Bank does not have a secured interest in any of the things Milo bought with his credit card.

Emergency Room Bill: Jane is in a bad car accident and goes to the hospital. Even with insurance Jane has to pay over $5,000 for her health services. The hospital sends Jane a bill. If Jane doesn’t pay the bill, the hospital will have to sue Jane to get the money. The hospital does not have a secured interest in any real or personal property Jane owns so the hospital debt is unsecured debt.

So a secured debt is secured by something the debtor owns, and the debtor has personal liability to pay the debt. If you stop paying on a secured debt, the creditor can seize the property used to secure the loan. Common things used to secure a loan are a home, a car, appliances and electronics.

But an unsecured debt is not secured by any property of the debtor.

What’s the Difference between a Secured Creditor and an Unsecured Creditor in Bankruptcy?

Bankruptcy rules give secured creditors special treatment over unsecured creditors.

Secured Debts in a Chapter 7 Bankruptcy

In a Chapter 7 Bankruptcy a debtor can liquidate or wipe away debts to get a fresh start. But if the debtor has a secured car loan, the creditor can seize it.

Chapter 7 Debtors who are Current on Secured Debt Payments

Many times a debtor is current on the payments for a secured debt such as a car loan, and he/she needs to keep the car to get to work. If the debtor wants to keep the property, there are a few options:

Reaffirmation: You work with the secured creditor so you can keep the property. But if you fail to make the required payments, the creditor can take the property. Most importantly, you have to get the creditor to agree to reaffirmation.

Redemption: You buy the property from the creditor for a lump sum during the bankruptcy process. Unfortunately, very few debtors have enough cash to use the redemption option.

Surrender: You can give up the property which secures the debt and wipe out the debt during the bankruptcy process. Without bankruptcy, surrendering the property to the creditor does not wipe out the debt, and a debtor could surrender the property but still wind up liable to the creditor for a deficiency judgment. However, in a Chapter 7 bankruptcy, surrendering the item which secures the debt, be it a house, car etc., along with the protections of bankruptcy law prevents the creditor from pursuing the debtor for any loan deficiency.

Chapter 7 Debtors who are Not Current on Secured Debt Payments

A debtor who cannot make his/her car payments will have a hard time saving the car. The secured creditor cannot repossess the car while the bankruptcy stay (a time period where creditors cannot try to collect) is in effect. Most secured creditors will ask the court to lift the stay to seize the property. In this common scenario courts will lift the stay and allow the secured creditor to repossess the item unless the debtor has reaffirmed, redeemed or surrendered the item which secures the loan as described above.

Unsecured Debts in a Chapter 7

Bankruptcy rules don’t give any special treatment to most unsecured creditors. Some types of unsecured creditors include medical creditors and credit card companies. In many Chapter 7 Bankruptcies unsecured creditors get little or nothing in the bankruptcy process.

Chapter 7 Priority Unsecured Debts

Some unsecured debts have to be repaid in full such as Alimony, Child Support, Taxes, and others listed in the Bankruptcy Code.

Our office can help you understand which category your debts fall into.

If you are considering bankruptcy call Schwent Law at (636) 937-4994.

Many parents are confused about the various custody issues which are determined by the Court at the time of a divorce or a paternity action. Parents who married have these issues determined after they separate in a divorce or dissolution action, parents who did not marry will have these issues determined during a paternity action.

Other than the issue of child support which will not be discussed in this post, there are at least three custody issues which are considered and eventually determined by the Court in every case: (1) Legal custody, (2) physical custody, and (3) residential parent status. I will briefly explain each of these below.

The controlling factor in the Court’s decision making for all of these issues is legally required to be what the Court determines to be in the best interests of the child or children involved.

Missouri law starts out with the presumption that most children are best served by having substantial and continuing contact with both parents. Of course, this presumption can be offset by proof that contact with one of the parents or both of the parents could be physically or emotionally harmful to the child or children. Significant proof is usually required for a court to determine that contact with one or the other parent will be harmful to the children.

Legal custody is basically a designation of which parent or parents will make the major decisions in the child or children’s life. What school will the child or children attend? What doctor will he or she go to? What church will the child or children attend? Will he or she go to summer camp? What day care or baby sitter will be used? What courses will the child or children take in school? Unless the Court order or parenting plan more specifically specifies any of these decisions to one parent or the other, the decisions will be made by the parent or parents with legal custody. A court order granting joint legal custody of the children requires the parents to make these decisions in concert, with both parents reaching an agreement on each decision.

Physical custody, just as it sounds, is a determination of which parent will have the child or children with them on what days of the week, month or year. Often parenting plans or Court Orders pertaining to physical custody are specific enough to designate the exact hour of pickup and delivery of the child or children, location of the custody exchange, and which parent pays any expenses associated with that exchange of the children including transportation costs for the child. Transportation expense can become an extremely contentious issue when parents live a significant distance apart necessitating the purchase of airplane tickets etc.

Residential parent status determines which parent’s home address will be used for registration of the child or children in the public school system or for any other educational purpose, and which parent’s home address will be used for mailing things to the child or children. Sometimes the issue of the child’s home address is also a determining factor in private school eligibility for attendance as in the case of parochial schools. It may also effect which state university can be attended by the college age child at the “in state” tuition rate.

As in all matters pertaining to children, the ideal situation is when the parents can reach an agreement between them as to what will be in the best interests of their children on these and other issues.

In almost all court cases the custody rights discussed above will be granted to the natural or adoptive parents of the child or children in question. Under certain circumstances however, the Court could make a determination that a third party should be granted legal or physical custody of the children in question.

Our law firm has over 38 years of experience assisting our clients with child custody issues in the Jefferson County Missouri court system. If you believe we can be of assistance to you in a child custody or any other legal matter please call our office at (636) 937-4994.

Money makes the world go round. And, money worries create lots of stress.

The 2015 Stress in America: Paying With Our Health survey ranks money as the top cause of stress. Households with incomes below $50.000 have it the worst. Wow! Money stress is a big problem. Bankruptcy can help relieve money stress. But, in 2005 Congress made it harder to file. A NY Federal Reserve Bank report found the following:

• Paperwork is harder.
• Costs are higher.

Today, fewer low-income individuals are filing for Bankruptcy. Low-income families need Bankruptcy the most:

• Flat-broke individuals have lower credit scores than those who could pay for Bankruptcy.
• Flat-broke individuals have less access to borrow cash than those who could pay for Bankruptcy.

The path to Bankruptcy may be harder. But, it is not impossible. Over the “Too Poor to File Bankruptcy Trap”:

Step 1: Don’t be ashamed to consider Bankruptcy. The cost of living exceeds the minimum wage. One financial disaster could start trouble. Don’t be ashamed to ask for help.

Step 2: Meet with a non-profit community credit counselor. Learn to manage your income better. This might be the answer.

Justine Peterson offers financial education workshops: www.justinepetersen.org

The University of Missouri Extension program in STL has workshops such as “Safeguard Your Savings” and “Get Checking”: http://extension.missouri.edu/stlouis/Financial.aspx

The University of Missouri Extension program in Hillsboro is in the process of hiring a Regional Financial Education Specialist. Future educational programs will focus on financial literacy, money management, and more: http://extension.missouri.edu/jefferson

Step 3: Schedule a Free Consultation with an attorney. Maybe you could do a payment plan. Once all the installments are paid, the attorney will file your Bankruptcy.

Money woes create stress. Learn your options. Contact Schwent Law at (636) 937-4994.