Small Claims Issues
Bankruptcy protects the debtor from debt collection by creditors. A debtor may file for bankruptcy, which is called "voluntary bankruptcy," or a creditor may petition the court to declare the debtor bankrupt, which is called "involuntary bankruptcy.'' Involuntary bankruptcy is allowed only under chapter 7 or chapter 11 of the U.S. Bankruptcy Code. There are four types of relief available to individuals or corporations under the Bankruptcy Code: liquidation (chapter 7), reorganization (chapter 11), debt adjustment for a family farmer (chapter 12), and debt adjustment for an individual with a regular income (chapter 13). Municipalities may file for bankruptcy under chapter 9. Generally, not all debts are repaid in a bankruptcy. The court determines which debts are to be repaid according to their priority, and the debtor is typically granted a discharge from unpaid debts that are dischargeable under the Bankruptcy Code.
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When declaring bankruptcy, it is very important to consultant with an attorney that is experienced in bankruptcy law and the workings of the Federal Courts. Attorney Johnson is the only attorney admitted to the Federal Court in southern Sturgeon Bay. He has been helping people obtain financial relief in the Federal Courts for more than three decades.
Often referred to as a 'complete bankruptcy' by individuals, filing a Chapter 7 bankruptcy means that an individual is asking the Federal Court to discharge all of the person's debt. The key word here is 'asking'; while the individual is asking to have all of their debt wiped away, it is up to the Court to decide whether each debt is discharged. Your attorney will be able to advise you on your debts and to properly ask the court for special considerations as needed.
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Child Support Issues
Support and Maintenance
Support and maintenance obligations to children and a former spouse have always been immune from discharge in a bankruptcy proceeding. However, prior to the 1994 Amendment to the Bankruptcy Act, the Bankruptcy Code permitted a debtor to discharge that portion of a financial separation agreement that was in the nature of a property division obligation.
Throughout the years there has been extensive litigation in bankruptcy courts to determine whether an award designated as a "property settlement" actually provided a support function; if so, it was non-dischargeable. If the bankruptcy court determined that the award was a property settlement, the amount owed was discharged. Despite the tests used by the various circuits to determine whether an award was property or support, the distinctions were frequently unclear because components of each settlement agreement are often related.
The 1994 Bankruptcy Reform Act addressed the support/property dilemma by broadening the protection for the entire settlement agreement. New Section 523(a)(15) enables the creditor spouse to prevent the discharge of the property component of the settlement by filing an adversary action in the bankruptcy court. The creditor spouse must prove that the detriment to her/him if the debtor did not pay the obligation would be greater than the benefit to the debtor.
Section 523(a)(15) grants a discharge of the property settlement to a debtor who cannot support himself or his dependents or a debtor who would lose his business by paying the property obligation. Under this new provision, the court balances the benefits and the burdens to the parties, considering factors such as the amount of the debtor's exempt property, the income of both parties and the number of dependents of each. Another significant factor courts consider is whether the non-debtor spouse will be liable to creditors if the debtor spouse fails to pay debts assumed under a hold harmless agreement, thereby increasing the non-debtor spouse's burden.
In a 1996 Georgia case, Cleveland v. Cleveland, the court considered the totality of the divorced parties' circumstances and projected income. The court concluded that the debtor's income combined with that of his live-in companion left him with discretionary income sufficient to make payments towards the hold harmless settlement obligation owed to his former spouse. The court stated that the detriment to the former wife clearly outweighed the benefit of $700 of discretionary income to the husband because the wife would be forced into bankruptcy if she had to assume the new debt. However, the court will discharge a hold harmless settlement obligation to third parties if paying the debt would reduce the debtor's income below the amount necessary for the support of the debtor and the debtor's dependents.
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Bringing a non-dischargeable Action
The procedure for challenging the discharge of a property settlement agreement is stringent. The former spouse must bring an adversary proceeding in bankruptcy court within sixty days of the first meeting of creditors. If the former spouse does not file a motion within the time limit, the property settlement debt is automatically discharged. Although Section 523(a)(15) does not require that the challenge must be limited to the child or spouse of the debtor, it appears unlikely that Congress intended to permit third party creditors to bring an action against discharge pursuant to this section. The Hon. Margaret Dee McGarity, Bankruptcy Judge for the District of Wisconsin, in a recent article noted that the legislative history indicates that section 523(a)(15) should be interpreted as an extension of 573(a)(5) which protects from discharge debts to children and spouses but not to third parties.
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Marital Property Issues
Debts incurred during your marriage, and while both spouses reside in Wisconsin, are presumed to be in the interest of your marriage and family. For a debt that meets these conditions, a creditor can go after all of the marital property that you and your spouse own, plus the individual property of the spouse(s) who created the debt.
A Marital Property Agreement is an agreement made between spouses who are either living together or separated. The purpose of such an agreement is to specify the details of their financial relationship and to limit the liability of each spouse for the other spouse's debt. In addition, creditors must be informed of this agreement and must be given a copy of it before any debt is created.
Section 523(a)(15) was interpreted by some courts to permit discharge of a portion of the property settlement because it was determined that the debtor had the resources to pay part, but not all. In a 1995 California case, In re Comisky, the issue was whether a debtor who had received the marital home pursuant to the property settlement and who was paying support in good faith was obligated to pay his former wife an amount that represented her interest in the marital home. The debtor, who was unable to make mortgage payments on the house, lost it to foreclosure, owing his former wife $18,000.
The court noted that neither party was legally or equitably at fault and that the detriment to the wife if she were not paid was equal to the benefit to the debtor if he did not have to pay. The court determined that the debt's discharge in this circumstance depended solely on the debtor's current and future ability to pay. The Comisky court concluded that section 523(a)(15)(A) did not mandate an all or nothing remedy. The court determined that the debtor could pay part of the $25,000 owed to his former wife over a reasonable period of time, as well as the alimony payments of $772 a month, because the debtor had the potential to earn additional income through part-time teaching. The court granted a discharge from $15,000 of the property obligation.
For more information, visit Marital Property.
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In a 1996 Connecticut case, In re Celani, the remarried wife, a debtor, owed her former husband $65,000 pursuant to the property settlement. Her husband claimed that the court should weigh the debtor's new husband's income in determining whether the benefit to her of discharging the property settlement outweighed the detriment to him. The wife argued that, because the court could not consider her new husband's income in determining whether she could pay the debt, it also should not consider his income in balancing the benefit and detriment. The court stated that the balancing test pursuant to Section 523(a)(15)(B) did not limit the inquiry to the debtor's income alone, but required an expansive review of everything, including the financial circumstances of new spouses. Thus, the court concluded that, although under 523(a)(15)(A) a new spouse's income cannot be considered in determining whether the debtor has the ability to pay, pursuant to 523(a)(15)(B) the extent to which a new spouse's contributions or expenses impact on the debtor should be relevant in balancing the equities.
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Protecting A Property Settlement Award
- As soon as you learn that your former spouse has filed for bankruptcy, contact an attorney with bankruptcy expertise.
- Your attorney will obtain a copy of the debtor's bankruptcy schedules to determine whether your debt is listed.
- If your debt is listed, your attorney may next file a Notice of Appearance with the bankruptcy court clerk. This notice will guarantee that the clerk will inform you of all developments in the debtor's case.
- If Child Support is involved, your attorney may file a Notice of Intervention of Child Support Creditor, a Proof of Claim with the bankruptcy court clerk and serve the debtor, debtor's counsel and the bankruptcy trustee with this Proof of Claim. Filing the Proof of Claim permits you (and your attorney of course) to appear in bankruptcy court and to object to any chapter 11 or 13 plan that may not treat you fairly.
- Within 59 days of the date set for the debtor's creditor meeting, your attorney may also file a non-dischargeability adversary action in bankruptcy court pursuant to Section 523(a).
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What to Bring to my Attorney
- A complete list of all of your debts.
- Any contracts that you have signed, including student loans, automobiles, and business loans and ownership agreements.
- Any court orders, including those regarding your income, payments you must make, such as Child Support, and garnishments.
- Deeds to any property you own.
- Mortgage contracts for your permanent residence and any other property you have mortgaged or are a party to the mortgage.
- Titles to any property you own, such as your automobile(s).
- Your income tax returns for the past five years.
- Your current employer's wage statements for the past year.
Budget & Credit Counseling
The Financial Information Service Center, FISC, offers counseling to help people discover their own solution to financial challenges. Through this service, the counselors help people to set up an effective money management plan.
FISC counselors will:
- Work with couples or individuals and help them set up a workable, realistic budget.
- Promote communication by talking about money.
- Teach people how to get out of debt and stay out of debt.
- Help people strategize through a financial crisis.
FISC charges a small fee for their services; however, they say that they will help anyone work out a solution regardless of the fees.
The Consumer Credit Counseling Service, a division of FISC, offers debt management services to discover new easy to deal effectively with money and provides information to help people learn:
- What a debt management plan can do for them.
- How to deal with creditors.
- Strategies for surviving bankruptcy.
- How to interpret a credit report.
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Debt Management Plans are set up with creditors to pay off debts in a reasonable time-frame, while allowing the client to support reasonable living expenses. Lower payments and lower interest rates are often available to create an environment for success. Debt Management Plans are voluntary programs that serve the dual role of helping people to repay their debts and helping credits to receive the money owed to them.
FISC also offers a Power of Money Workshop, where families can receive professional guidance, whether it is creating a sound budget, a repayment plan to creditors, or basic financial advice on where to cut expenses. The Power of Money workshop is designed to help you achieve a positive new habit in life: controlling your financial situation.
Presentations and workshops are available and can be tailored for any group, club, classroom, etc. To learn more about these and other programs, contact the local FISC office in Sturgeon Bay at (920) 743-1862.
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- DUI/DWI/OWI - Commonly referred to as Drunk Driving
- Homicide, Reckless Endangerment, Accidental Death
- Search and Seizure
- Habitual Criminal Law
Criminal Law is public law that deals with crimes and their prosecution (compare civil law). Substantive criminal law defines crimes, and procedural criminal law sets down criminal procedure. Substantive criminal law was originally common law for the most part. It was later codified and is now found in federal and state statutory law.
Habitual Criminal Law is a law that imposes greater penalties if a convicted defendant has previously been convicted of one or more crimes. Some such laws have been challenged on the ground of violating the prohibition on cruel and unusual punishment in the Eighth Amendment to the U.S. Constitution or on the ground of being an ex post facto law.
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The basic rights of a citizen under arrest are stated in the Fifth, Sixth and Eighth Amendments of the "Bill of Rights" of the United States Constitution.
"No person . . . shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law…." (Fifth Amendment).
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense." (Sixth Amendment).
"Excessive bail shall not be required, nor excessive fines imposed, nor shall cruel and unusual punishments be inflicted." (Eighth Amendment).
Since the adoption of the Fourteenth Amendment to the Constitution, the states have also had to guarantee these rights. This amendment provides: "No state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States . . ."
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What Not To Do If Arrested
Do not resist a law enforcement officer who attempts to arrest you - even if you are innocent. The fact that you are innocent will not make the arrest illegal if the officer's action conformed to the requirements of a legal arrest as stated above.
If the arrest is legal and you resist, you may be guilty of the crime of resisting lawful arrest. If the arrest is illegal, you are entitled to bring an action against the law enforcement officer for false arrest.
It is best not to resist a citizen's arrest. Although you can't be prosecuted for resisting arrest, you may be found guilty of assault and battery.
The person making a citizen's arrest cannot be liable for damages for false arrest if he had reasonable ground for believing a crime had taken place and you are the person who committed it.
Do not resist a law officer's attempt to search or "frisk" you. It is legal for an arresting officer to search your person and the area in your immediate presence.
Even if he does not arrest you, an officer - after identifying himself - may stop you in any public place if he has reason to believe that you have committed, are committing or are about to commit a crime. He may demand your name and address and an explanation of your actions. If he reasonably suspects that he or another is in danger of being attacked, he may search you for weapons.
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Your Rights After Arrest
The U.S. Supreme Court has ruled that as soon as you are taken into custody you must be informed of the following: (1) You have a Constitutional right to remain silent. (2) Anything you say can be held against you. (3) You have the right to legal counsel and that if you cannot afford a lawyer, one will be appointed for you. (4) If you choose, you may have a lawyer present during interrogation. (Miranda Rights).
In addition to advising you of your rights, the arresting authorities must respect your rights. For example, you cannot legally be required or forced by a police officer or any one else to talk, to answer questions, or sign any papers. If by threats, by persistent questioning or other means of coercion, you are forced to give incriminating information, you can prevent its use against you in court.
Within a reasonable time after you have been taken into custody you have a right to make a reasonable number of telephone calls or otherwise communicate with an attorney of your choice and a member of your family. If you are transferred to a new place of custody, this right of communication is renewed.
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You have a right to an itemized receipt for all money and property taken from your person after you are taken into custody.
You have a right to be "booked" within a reasonable period of time. "Booking" is the entry of a charge against you in record called the "arrest book" or "police blotter."
Should your detention go beyond a reasonable period of time without booking (more than several hours or perhaps overnight), your attorney may go to a judge and obtain a writ of habeas corpus. This is a Court order instructing the police to bring you before the Court so that a judge may decide whether you are being held lawfully.
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Obtaining Release On Bail
You have a right to apply for and post bail as a means of obtaining your release from custody. The Court will normally set bail, even with a charge of murder or other serious crimes, unless the proof is evident or the presumption is great that the person is guilty of the crime.
Bail is the money or other security you deposit with the Court as an assurance that you will appear for trial. The Court will accept property (real estate) as bail provided certain detailed conditions are fulfilled.
If there is a warrant for your arrest, the amount of bail will be stated on the warrant. For certain minor offenses the amount of bail is fixed by a judge and you have a right to be brought before a judge for that purpose at the next regular Court session. Or, you may be released on your own recognizance - that is, your own word that you will keep your date in Court.
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Your Rights in Court
You have a right to a reasonable time to prepare a defense before being tried in Court. Whether or not you declined your right to be represented by counsel during police interrogation, you have the right to be represented by counsel in Court. You are entitled to a reasonable time to obtain a lawyer of your own choosing. If you want a lawyer and cannot afford one, the Court must appoint one to defend you.
You are entitled to know the charge against you and to have, without cost, a copy of the formal paper that contains the charge.
You are entitled to plead "not guilty." If you do so, you will be tried by an impartial jury, unless you specifically waive your right to a jury trial.
You are not required to testify if you do not wish to do so. If you do not testify, neither the judge nor the jury can consider your silence as evidence of guilt. In the eyes of the law you are innocent unless proven guilty beyond a reasonable doubt by the evidence presented in Court.
How you plead and whether you testify are vitally important questions and you should have the advice of a lawyer.
For Frequently Asked Questions about Arrests, please visit our FAQ page.
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Marital Property includes all the income and possessions of a married couple. Each spouse owns them equally. Certain items may have only one spouse's name on the title That isn't proof that only the named spouse owns the item, but it does generally give that spouse the right to manage and control the item. He or she has a duty to treat the unnamed spouse fairly.
In 1986, the Wisconsin Uniform Marital Property Act was enacted to reflect the belief that what a couple acquires during their marriages belongs to both of them equally. The law recognizes that each spouse makes equally important contributions to the success of the marriage. These contributions are acknowledged through equal ownership of any assets they acquire.
All property is presumed to be marital property unless you can show that it should be classified in some other way. Other classifications include:
- Individual property, generally, property one spouse owned before getting married.
- Gifts or inheritances, no matter when they were received.
- Deferred marital property - anything tat would have been classified as marital property except for the fact that it was acquired before January 1, 1986, when the Marital Property Reform Act took effect.
- Survivorship Marital Property - property that goes directly to the surviving spouse upon the death of the other. It is not subject to the probate process.
One of the primary purposes of the Marital Property Reform Act regarded the ability of the spouse earning less income to have an easier time of obtaining credit. To determine whether one spouse qualifies for credit, a creditor must consider all marital property, including the income of the other spouse.
Future income is the marital asset most often used to qualify for credit. Any income earned after a marriage ends, whether by divorce or death, is not marital property. A creditor can only go after the marital property or income of a spouse who signed for the credit. Many creditors will want to protect their interests by asking both spouses to sign. This enables the creditor to go after the income of either spouse if the marriage ends.
If you do not have a will, all of your estate will go to your surviving spouse, unless there are children from a prior marriage, in which case half of your estate will be split equally among all of your children and the other half will go to your spouse.
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Marital Property Reclassification
If individual property is mixed with marital property, the individual property may be reclassified as marital property. If you wish to preserve individual property, you must keep detailed records that will allow the individual property to be traced. See Marital Property Agreement.
Effects of Marital Property on your Will
The law may change the effect of your will. Your estate will include all of your individual property plus half of all marital property, regardless of title. Depending upon the wording of your will, you could pass your half interest in property that is titled in your spouse's name to someone else, thereby creating a type of co-ownership. So old wills should be reviewed in light of the marital property law as well as other changing laws.
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Closing, Boundary Disputes
Small Claims Issues
Small Claims Court
- Small claims court provides an informal way to resolve minor lawsuits and other legal problems. You may use small claims court in any of the following situations:
- someone injures you, damages your property or violates a contract to which you're a party, and the amount you seek is $5,000 or less.
- you want to repossess property valued at $5,000 or less. This is called a replevin action.
- you already have a legal judgment for $5,000 or less against someone and you want to enforce the judgment by seizing funds or property which the other person possesses (such as wages). This is called a garnishment (for money) or an attachment (for property).
- you're a landlord seeking to evict a tenant. Any amount of rent may be owed. The $5,000 limit doesn't apply.
Before you start any legal action, try to settle your dispute. If you can't settle and you feel small claims court is appropriate, go to your county courthouse and obtain the necessary forms from the clerk of court.
Make sure you're suing in the right county. Your county is the right place if:
- the person or business you're suing (the defendant) resides or does a substantial amount of business in your county;
- your claim arose in your county; or
- the property involved in your claim is located in your county.
To start your action, fill out the forms, called the summons and complaint. You're the plaintiff. Make sure you list the defendant's name and address correctly. Check one of the three boxes on the form to show the type of lawsuit: money, eviction or return of property. (Interest on money lawsuits is normally 5 percent from the date on which the claim arose to the date the court enters judgment, and 12 percent thereafter until paid.) In the "Statement of Dates and Facts" section, tell what happened simply and concisely - legalese isn't necessary. It's a good idea to attach any billing statements or invoices if you're suing for money.
Ask the clerk if you need help completing the forms, but keep in mind that he or she can't give legal advice.
Various fees must be paid, and many are subject to change.
There's often a charge for having the summons and complaint served. It must be delivered to the defendant by an adult other than yourself. If the defendant's address is in the county where you file suit, the court may serve it by mail for $2 per defendant (or more if your county requires certified mail). If the defendant is outside the county, service must be personal. The subpoena must be served just like the summons and complaint, with the same fees. In addition, you have to pay each witness a fee of $16 per day and 20 cents per mile for travel.
What's the procedure once the case is started?
A "return date" will be set as the first step. Both you and the defendant must appear in court at the scheduled day and time. (Some counties require only a written response or a telephone call from the defendant instead of a personal appearance.) Bring along proof that the defendant was served and that he or she owes you the money or property you claim.
If the defendant doesn't show up or respond, you may get a default judgment. In other words, you win. The defendant who does appear will have to admit or deny the accusations in the summons and complaint. The defendant may admit all or part of your claim and ask for time to pay. Many cases are settled at this stage.
A hearing is the next stage in a contested matter. In many counties, a court commissioner will conduct a hearing at a later date. Both you and the defendant may present evidence and call witnesses. The hearing is informal and the court commissioner will help identify the issues. Rules of procedure and evidence aren't strictly enforced. The court commissioner's decision may be given orally or in writing. It becomes final within 11 days if given orally, and within 16 days after the decision is mailed if in writing. A written decision must be mailed within 30 days of the hearing.
Along with the court commissioner's decision, you'll receive instructions on how and when you may challenge the ruling. Either party has the right to challenge it and demand a trial before a judge or jury. The demand for a trial must be made in writing within 10 days of the court commissioner's oral decision, or within 15 days after the mailing of a written decision.
The judge may hold a pretrial conference in an effort to settle the case. If the case goes to trial, the court commissioner's ruling won't be considered. Note: In some counties a judge, not a court commissioner, handles small claims hearings. Be sure to ask the clerk of court for information on how your county handles small claims.
Do you need a lawyer for a small claims case?
It all depends on the complexity of your case and whether it's contested. Generally you don't need a lawyer to file a small claims action. But if the defendant hires a lawyer, you may want to do the same to protect your interests, especially if your case is tried before a judge or jury. If you win your case, the court may order the defendant to pay attorney fees according to a schedule and you will be responsible for the remainder of the balance to your attorney. As well, if you obtain a judgment by default (the defendant does not show up), the court will award you one-half of the attorney fees in the current schedule.
If you win your case, you are entitled to the money or property the judge decides is due you, plus out of pocket expenses such as attorney fees and court costs.
If you win a money judgment, the judge will order the defendant to fill out a financial disclosure form and mail or deliver it to you or the clerk of court. The defendant must list his or her residence, employers, and their addresses, financial institutions where he or she has funds on deposit, real estate owned, automobiles, cash on hand, and other assets or sources of income. The completed form must be sent to you or the clerk, or the judgment paid, within 15 days.
If the defendant doesn't pay, you have several options. You may docket the judgment at the courthouse by paying a $5 fee. The docketed judgment then acts as a lien on the defendant's real estate. You may also start a garnishment action to obtain a portion of the defendant's earnings or bank deposits. If the defendant fails to file the required financial disclosure form, you can ask the court to hold the defendant in contempt.
If you lose your case, you may appeal it. Appeals are quite complicated matters and it is best to seek the immediate assistance of an attorney.
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