Gorman Law Firm, PLLC

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Bankruptcy: An Introduction

Bankruptcy seems like a scary concept. It certainly carries a heavy stigma within society. But is it the big, bad monster it seems? The answer may surprise you.

In the past, when a borrower could not pay his debts, he and his family had everything stripped away and could even be placed into servitude. As societies evolved, it became clear that placing people into slavery for their inability to pay would not inspire economic growth. What could a nation do to encourage people to continue participating in the economic market while dealing with unpaid debts? The United States found a unique answer… bankruptcy. 

Bankruptcy is a process by which individuals, families, and businesses can eliminate or repay some or all of their debts. This process is guided and protected by the federal bankruptcy court. Bankruptcy acts as a means for individuals and businesses to not only reduce or wipe out past debts, but also restructure their finances so that they can start again with a “clean slate”, all while making more financially sound decisions in the future. For this reason, bankruptcy is also known as “debt restructuring”. There are two basic types of bankruptcy: “liquidation” and “reorganization.” For individuals, “liquidation” is considered Chapter 7 Bankruptcy while “reorganization” is Chapter 13 (of Title 11 of the United States Code).  

Chapter 7 allows for individuals who qualify to discharge (eliminate) most of their debts. This is accomplished by liquidating non-exempt assets to settle current debts. The process is relatively straightforward. Essentially, each state has a list of items (e.g. a home, a car, most personal property) that are exempt from the bankruptcy process. When you file a petition for bankruptcy, you are appointed a bankruptcy trustee. This trustee will usually assist in the process of identifying exempt property and selling non-exempt property. The “liquidated” property proceeds will then be distributed to your creditors in exchange for wiping out most debts. It is important to note that some debts, most famously student loan debt, cannot be eliminated through bankruptcy. 

Chapter 13 operates as a repayment plan and financial reorganization. Debtors who file for bankruptcy under Chapter 13 work with the bankruptcy court, advisors, financial counselors, and attorneys to develop a repayment plan, which is then filed with the court. The plan details every debt owed by the borrower, as well as financial income and property ownership. The essential idea is that instead of losing non-exempt property, you create a repayment plan to pay back debts based on your income that is sustainable and fair to all parties. 

Are you struggling with financial debt? Have you begun to fall behind on payments? Do you receive harassing phone calls all day and night? Have you received threating letters about foreclosure or other means of financial collection? There is a light at the end of the tunnel. After filing a bankruptcy petition, a bankruptcy court will issue an “automatic stay” which provides notice to all creditors you list on your petition and forces them to discontinue collection efforts while the court handles your matter. At the end of the bankruptcy process, creditors receive a letter that the matter is closed and you no longer have to pay your debts (if the debt was discharged). 

The American system of bankruptcy acts as a life preserver to those individuals and businesses that find themselves in financial troubles too deep to overcome alone. It allows a debtor to effectively remove or reduce their debts and “start over” financially. So the next time you hear the word “bankruptcy”, don’t cringe. Think to yourself, “Now that is an incredible and innovative American solution!”

If you are facing financial crisis, know that you don’t have to face it alone. Give us a call at (704) 537-1400 to set up a consultation to meet with our attorneys and discuss your options today!

Immigration and DWI/DUI

Driving While Intoxicated (DWI) and other traffic offenses have unique consequences for immigrants in the United States whether they have been lawfully admitted or not. While all crimes may be considered by the Department of Homeland Security (DHS) in removal proceedings, certain crimes carry more weight. Crimes involving moral turpitude (CIMT) may render an alien inadmissible or deportable depending on their status. DWI offenses may also lead undocumented immigrants to receive higher priority for removal proceedings. 

The Board of Immigration Appeals (BIA) has defined crimes involving moral turpitude as conduct that is inherently base, vile, or depraved, contrary to the accepted rules of morality and the duties owed other persons, either individually or to society in general. Crimes involving moral turpitude require an element of intent that is absent from ordinary DWI cases. Intent for CIMT must be at least recklessness (knowingly endangering another’s health or safety). However, the addition of an aggravating factor such as driving with a suspended license or with a child in the car or the commission of an additional crime such as using illegal drugs is usually enough to trigger a CIMT. (It should be noted that illegal use of a controlled substance is another, separate, ground for inadmissibility, see 8 USC 1227(a)(2)(B)(i) and 8 U.S.C. § 1182(a)(2)(A)(i)(II)) 

Certain traffic convictions such as Driving While Intoxicated may also lead to higher priority by DHS with regards to apprehension, detention and removal of undocumented immigrants. Because of the high volume of undocumented immigrants in the United States, DHS has created a priority system designed to streamline removal and prioritize the removal of aliens that pose a “threat to national security, border security and public safety”. 

An offense classified as a felony in the convicting state may result in an undocumented alien becoming classified as Priority 1 for removal. In North Carolina, habitual DWI offenders or a DWI offender paired with other aggravating circumstances may be convicted of a felony. Further, Driving Under the Influence is considered a “significant misdemeanor” for purposes of Priority 2 removal. Other offenses resulting in a sentence of time in custody of ninety days or more (not a suspended sentence) may also be classified as “significant misdemeanors”.  Aliens convicted of three or more misdemeanor offenses, other than minor traffic offenses, if the offenses arise from separate incidents, may also find themselves classified as Priority 2. 

Unfortunately, some criminal attorneys do not realize that there are significant repercussions for immigrants with convictions and consequently push for standard plea agreements that result in a “conviction” by immigration standards. Criminal convictions have the potential to prevent admissibility to the United States and may even lead to removal proceedings and a ban on the ability to return to the U.S.  Because of the complex nexus between criminal conduct and immigration, it is important to find an attorney who is educated about the intricate laws of immigration to help guide you through the process after any charge, from minor to significant. The attorneys and staff at Gorman Law Firm, PLLC understand the intricacies of criminal convictions and immigration. We can help you find the best path to reduce the damage of convictions while protecting your rights and interests as a non-U.S. citizen.

Immigration and Divorce

Can divorce affect your immigration status? If your U.S. Visa was granted because of your spouse’s application, you may find yourself wondering what could happen if you and your spouse separate or get a divorce. The answer varies depending on how far along you are in the immigration process. 

Approved visa petition (USCIS Form I-130): Form I-130 is a form submitted to the United States Citizenship and Immigration Services by a U.S. citizen or a Lawful Permanent Resident petitioning for a close relative (here, a spouse) who intends to immigrate to the U.S. Approval of the petition does not create status and if you divorce at this point in the process, you will not be able to proceed toward U.S. immigration. 

Conditional Residence: If you used your spouse’s status to gain immigration status to the U.S. within two years of your marriage, you are a conditional resident.  Conditional Residence is a two-year green card given to a spouse whose marriage is less than two years old. To become a permanent resident, you and your spouse will jointly file a Form I-751 within the final 90 days of your conditional residence green card. Form I-751 is a petition to remove conditions on residence. If you divorce after being granted conditional residence but before filing Form I-751 to remove conditions, you may be able to get a waiver of the other spouse’s signing requirement, but you will have to show that the marriage was bona fide (genuine).  This is to ensure that the marriage was in good faith and not entered for the sole purpose of fraudulently obtaining a green card. Proving that the marriage was not fraudulent can be a daunting task and you will likely need an attorney’s help the specific evidence you will need to get a waiver of the spouses signature. 

Approved Permanent Residence: If you already have a green card and are a permanent at the time of the divorce, the divorce should not affect your status.  However, divorce may change your approach to U.S. Citizenship.

U.S. Citizenship/Naturalization: Divorce may delay your naturalization. Naturalization is the process of obtaining U.S. citizenship. If a permanent resident is married to a U.S. citizen, he or she has a three-year residency requirement for U.S. citizenship as opposed to a five-year residency requirement. If you divorce before the three-year residency requirement is fulfilled, you will have to wait until you have been a permanent resident for five years to apply for U.S. citizenship. 

Marriage Fraud: An allegation of marriage fraud by the spouse can lead to criminal liability and deportation. If your spouse seeks to obtain an annulment by claiming the marriage was fraudulent, you must contest the annulment to avoid the serious consequences that may follow.

Immigration is a complex area of law. It is important to seek an attorney who understands the intricacies of immigration and can successfully integrate the details of immigration into other areas of the law, such as divorce. If you are an immigrant and are considering a divorce, speak with an attorney that can help you protect your status. At Gorman Law Firm, PLLC, our attorneys and staff are equipped to guide you through the processes of divorce and immigration. Our firm offers legal services in Immigration, Civil, Family, Personal Injury, Traffic, Business and Criminal matters. Contact us today to set up a consultation!

Child Custody Agreements- Avoiding the Stress of the Courtroom

 

According to the U.S. Census, last year, approximately one million children were affected by custody issues. ( Parenthood.com) Child custody is undoubtedly one of the most contentious issues surrounding the breakup of a couple with children together- married or not, the couple must decide who, where, and how to continue to parent their children. And it’s almost never as simple as which parent’s home the child will stay and on which days. Separating parents face a myriad of questions when it comes to custody-  not only where will the child stay and when, but who will be in charge of taking them to activities? Who will pay medical costs? Can we go on trips without the other parents permission? Who can be around the child? How do we handle new spouses/partners relationships with the child?

It’s understandably overwhelming. And for many reasons, a courtroom isn’t necessarily the best place to get all of those questions answered.

Oftentimes, parents who are splitting up are willing and ready to decide custody matters amongst themselves- but want an extra layer of protection. That is where a Custody Consent Order comes in- and an experienced custody attorney.

A custody consent agreement allows parents to negotiate and agree amongst themselves the above questions, plus whatever other issues are important to them regarding their kids.

Do I need an attorney?

One or both parents usually hire an attorney to help them with the custody agreement. It’s a good idea to at the very least get the counsel of an attorney, because they are going to know what North Carolina allows as far as custody agreements, how the process works, and how to negotiate effectively to get a satisfactory final product.

What sorts of issues can be addressed?

North Carolina allows many issues surrounding custody to be decided via consent agreement. Some example include: which parent will have physical and legal custody, or- if both parents are to split custody- where the child will be on which days and who has decision making power for specific issues; whether child support will be paid to one parent and how much/often it will be paid; whether each parent may travel outside of the state or country with the child; who will be in charge of insurance coverage; who will be in charge of uninsured medical costs; who will decide what activities the child will participate in and who will pay for them….and many more.

What is the process?

The attorney will sit down with the parent that they are representing and go through all of the issues that the parents have concerns with and develop a proposed agreement based on that parents positions. Then, the attorney typically sends it to the other parent, or the other parents attorney to review and make counter proposals. The parents will go back and forth until both are happy with the agreement.  Sometimes, formal mediation is necessary to come to an agreement ( see previous post on Mediation) After both parties have agreed and signed, the consent gets submitted to the court for a judge’s signature. Once signed by the judge, the agreement is a court order ( as if the judge had said it themselves).  

If you think a Child Custody Agreement could be right for you or your case, or are just interested in learning more about the process OR just have questions about family law at all- Call Gorman Law Firm, and ask to speak to Emily Edwards!

CONTACT OUR FIRM

If you are currently facing a family law related issue, contact Gorman Law Firm, PLLC. Our office can be reached by phone at 800-583-6602 or by completing our online contact form. Our office is open normal business hours during the week, but we provide office hours on Saturday and are available around the clock through our website. We accept all major credit cards as payment and offer services in English, Spanish and Portuguese. OR check out our website: gormanlawpractice.com! 

 

Sources:

 “New Trends in Child Custody.” Parenthood.com , http://www.parenthood.com/article/new_trends_in_child_custody.html#.VaUfo_lVhBc

Controversy Over Donor's Rights to Parent Reported By New York Times

"Does ‘Sperm Donor’ Mean ‘Dad’?

By BROOKS BARNES- NEW YORK TIMES 

MAY 2, 2014

LOS ANGELES — He is a movie star who shot to fame on a motorcycle in “The Lost Boys.” She is a California massage therapist from a prominent East Coast family. Four years ago, with his sperm, her eggs and the wonder of in vitro fertilization, they produced a child.

From there, the tale gets very, very messy.

For the last two years, Jason Patric and Danielle Schreiber have been waging what has become one of the highest-profile custody fights in the country — one that scrambles a gender stereotype, raises the question of who should be considered a legal parent and challenges state laws that try to bring order to the Wild West of nonanonymous sperm donations.

Played out on cable news, dueling “Today” show appearances, YouTube videos and radio call-in talk shows, this rancorous dispute, which heads back into a California courtroom next Thursday, serves as cautionary tale for any man considering donating sperm to a friend and any woman considering accepting it from one, experts say.

 “The resonance here is enormous because of the increasing number of families being formed today outside of traditional marriage,” said Naomi R. Cahn, a family law professor at George Washington University and the author of “Test Tube Families.” “Single heterosexual women, lesbian couples, men who donate sperm expecting to be part of a child’s life — they had better be paying attention.”

Is this a case about a desperate dad who is being maliciously prevented from seeing his son, as Mr. Patric insists? Or is it about a woman’s right to choose to be a single mother and have that choice protected from interference, as Ms. Schreiber’s lawyers assert? Is it both?

And exactly how did these two end up as the public faces of a complicated debate that exposes America’s increasingly fuzzy definition of what constitutes a family?

Mr. Patric, 47, the grandson of Jackie Gleason and the son of the playwright Jason Miller, was once one of Hollywood’s hottest rising stars. His brooding good looks helped land him coveted roles in films like “After Dark, My Sweet” and “Speed 2: Cruise Control,” as well as romantic partners like Robin Wright, Christy Turlington and Julia Roberts, who famously jetted off to Ireland with him a few days after breaking off her engagement to Kiefer Sutherland, a friend of them both.

His film career cooled in part because he started to demand higher-quality scripts and turned down parts in big commercial movies. (He also developed a taboo-breaking habit of publicly criticizing the Hollywood machine, producers say.) His last movie, “The Outsider,” had a brief theatrical release before going straight to DVD; his two films before that took in less than $30,000 combined at the United States box office. But a Broadway appearance in 2011, in a revival of his father’s Pulitzer Prize-winning play, “That Championship Season” (performing along with, coincidentally, Mr. Sutherland), was a reminder to many of his formidable acting talent.

Ms. Schreiber, 41, is the daughter of James Schreiber, a well-known Greenwich, Conn., lawyer and investor, and a sister of Zachary Schreiber, the chief executive of PointState Capital, a $5 billion hedge fund. Ms. Schreiber, an American civilization graduate of Brown University who runs a Rolfing massage practice in Los Angeles, met Mr. Patric in 2002 when he went to her as a massage client and the two became a couple, dating off and on for a decade.

She had long wanted to be a mother, according to a family member. But pregnancy attempts with Mr. Patric did not go well. “I even had a surgery to increase our chances,” he said in an interview last week.

They decided in 2009 (at a time when they were not romantically involved but still friendly) to pursue artificial insemination. Ms. Schreiber, who declined an interview request for this article, was keenly familiar with fertility options: Her mother, Linda, had becomea bit of a celebrity in her own right in the 1970s after a regimen of the pregnancy drug Pergonal resulted in quadruplets. (Ms. Schreiber is one of them.)

Along came Gus, named after Ms. Schreiber’s paternal grandfather. The boy’s middle name is Theodore, a nod to Mr. Patric’s family heritage.

The baby eventually helped rekindle a romance between Ms. Schreiber and Mr. Patric, although they never formally moved in together. For the next two years, Mr. Patric said that he played a parental role (“I took him to get circumcised when he was 8 days old”) and that Gus, now 4, referred to him as “Dada” in videos and messages. “Thank you for teaching me to pee in the toilet, watch airplanes, learn Beatles songs. I love you Dada, Gus,” read a card that was written by Ms. Schreiber, given to Mr. Patric and later presented as evidence in court. (A lawyer for Ms. Schreiber contended that Mr. Patric did not attend the circumcision, but did provide a ride because she could not drive after a cesarean section.)

Then, in June 2012, the couple broke up for good. Shortly thereafter, Mr. Patric filed a paternity suit for shared custody. According to both sides, there was legal mediation, during which time Gus continued to see Mr. Patric.

But then, according to court filings, Ms. Schreiber abruptly started to withhold visits. Ms. Schreiber’s lawyer, Fred Heather, said his client saw Mr. Patric as increasingly threatening and hostile. “She was fearful for herself as well as for Gus,” Mr. Heather said — allegations that Ms. Schreiber made in her court case. (She filed for a restraining order, which was granted and is still in effect.) Mr. Patric vigorously disputed that claim, maintaining that Ms. Schreiber’s shift was a legal maneuver, a result of stumbling across a loophole in state sperm-donor laws.

California, like many states, according to Professor Cahn, has conflicting statutes. One provides that any man can establish parentage if he “receives the child into his home and openly holds the child out as his natural child.” But another statute holds that a man who provides his sperm to a doctor for the purpose of inseminating an unmarried friend is “treated as if he were not the natural father” — unless there is a specific written agreement ahead of conception.

Mr. Patric and Ms. Schreiber had no such agreement. And her lawyers say there was nothing cavalier or last minute about it: “Danielle knew about the law before she chose to proceed with a known sperm donation,” Mr. Heather said. “She made a carefully considered judgment.”

Mr. Patric took her to court, holding up “intended parent” forms he signed at the sperm-donor clinic. Ms. Schreiber stood her ground, noting that Mr. Patric had asked that his name not be on the birth certificate. (“It would have thrust Gus into the limelight, and I wanted to protect him,” Mr. Patric said.) As for Gus calling Mr. Patric “Dada,” her lawyers say it doesn’t matter: Ms. Schreiber never intended to keep Mr. Patric’s identity a secret from Gus, but she did intend to prevent Mr. Patric from having any parental rights. (“The lies are stunning,” Mr. Patric said.)

Ms. Schreiber won. A Los Angeles appellate court is scheduled to begin hearing Mr. Patric’s appeal next week.

“The trial court erred in several regards,” said Fred Silberberg, Mr. Patric’s lawyer. “There is a substantial amount of evidence where she indicated him to be the father. She shouldn’t be able to say, ‘Oh, wait, that no longer counts.’ ”

In part because sperm donation is such a secretive trade, there are no reliable statistics on how many men donate to people they know. But anonymous donors represent the vast majority of the more than 30,000 estimated births that result from donated sperm each year. California Cryobank, the nation’s largest sperm bank, said it administers less than 10 samples a month out of more than 2,000 total where the father is known.

But more men and women are choosing a nonanonymous route, experts say, prompted by societal shifts and concerns about the health histories of anonymous donors.

Donation laws, some passed before the widespread use of in vitro fertilization, have increasingly drawn scrutiny. In January, because of a twist in the law, a Kansas man who donated sperm to a lesbian couple he met on Craigslist was ordered to pay child support even though he signed documents waiving parental rights.

California lawmakers last summer considered legislation that was positioned as an attempt to clarify that state’s donor laws. (That bill was ultimately put on ice pending Mr. Patric’s appeal.) A separate bill is now working its way through the California Legislature; it would put into effect standardized donor forms “to reduce subsequent legal confusion involving donors and parents.”

But Mr. Patric maintains that his case as a matter of moral principle has nothing to do with sperm donation. Rather, he sees the case as a matter of “parental alienation,” or when one parent refuses to allow the other to see the child. “This is child abuse,” he said. “When a parent is shut out, the only information is a skewed, perverted narrative — that mommy or daddy doesn’t love you.”

He added: “It’s so emasculating, so totally devastating. He lives 10 minutes away from me, and I haven’t been able to see him in 63 weeks. Do you know how heart wrenching that is?”

Last October, Mr. Patric created Stand Up for Gus, a foundation that has raised more than $200,000, according to a spokeswoman, Mia Rose Wong. Ms. Wong said the money will be funneled to law offices willing to provide pro bono services to low-income clients in similar family-law situations. On April 25, Mr. Patric announced a $100,000 pledge to Levitt Quinn Family Law Center in Los Angeles.

Celebrity supporters have included Mel Gibson, Jon Hamm, Ben Affleck, Matt Damon, Chelsea Handler, Mr. Sutherland, Nikki Reed, Chris Noth, Sarah Silverman, Chris Rock and Mark Wahlberg.

Ms. Schreiber has tried to block Mr. Patric from using their son’s name on Twitter, Facebook and at fund-raising events in relation to Stand Up for Gus. She has been losing that fight. Last week, a Los Angeles judge denied a restraining order request on the ground that it would violate the actor’s First Amendment rights. (Her lawyer, Mr. Heather, said she does not plan to drop this element of the fight, perhaps pursuing a deceptive fund-raising case.)

Throughout his career, Mr. Patric has been a reluctant celebrity, courting the spotlight only as a publicity tool for his films. So why has he gone so public in this instance, appearing on talk shows like “Katie” and news programs like “20/20” to publicize parental alienation?

“I want to leave a huge trail so Gus will someday know how hard I fought for him,” he said.

But what will Gus someday think of Mr. Patric’s decision to speak abr"asively about Ms. Schreiber? “I don’t say negative things about her,” Mr. Patric said. “I’m not in a public spat with her.”       "

CONTACT OUR FIRM

If you are currently facing a family law related issue, contact Gorman Law Firm, PLLC. Our office can be reached by phone at 800-583-6602 or by completing our online contact form. Our office is open normal business hours during the week, but we provide office hours on Saturday and are available around the clock through our website. We accept all major credit cards as payment and offer services in English, Spanish and Portuguese.

Gorman Law Firm, PLLC
200 West Blvd
Charlotte, NC 28203
Phone: 704-537-1400
Fax: 704-537-3727 

Hours of Operation
Monday-Friday: 8:30am-6pm


Saturday by appointment: 10am-2pm