How Divorce & Bankruptcy Intersect

Divorce and bankruptcy are both challenging life events, and they often intersect in ways that can significantly impact your financial and legal situation. If you’re considering or currently going through either, it’s important to understand how they might affect each other.

1. Timing is Key.  One of the biggest questions is whether to file for bankruptcy before or after divorce. Filing jointly before divorce may save money and streamline the process by addressing joint debts together. However, individual circumstances—like income and property—may influence the best approach.
2. Joint Debts & Responsibility.  Divorce settlements often divide responsibility for debts, but creditors don’t honor those agreements. If your ex-spouse fails to pay their share, creditors can pursue you. Bankruptcy can provide protection from this risk by discharging those debts.
3. Types of Bankruptcy & Divorce.  Chapter 7 bankruptcy is quicker, often completed in a few months, which may be a more attractive chapter if you’re divorcing soon (that is, if you qualify for Chapter 7 bankruptcy!).  Chapter 13 bankruptcy involves a repayment plan over several years, which will require your divorce attorney and bankruptcy attorney’s expertise and collaboration to navigate the two proceedings.
4. Protecting Assets.  Bankruptcy and divorce both involve the valuation and potential division of assets. Understanding how exemptions work in bankruptcy can help protect essential property, like your home or car, during the divorce process.
5. Domestic Support Obligations are Non-Dischargeable.  Domestic Support Obligations, like alimony and child support, are not dischargeable and cannot be eliminated in a bankruptcy proceeding. If you are ordered to pay domestic support, these debts remain your responsibility regardless of whether you file for Chapter 7 or Chapter 13 bankruptcy.
6. Joint Debts & Responsibility.  Divorce settlements often divide responsibility for debts, but creditors don’t honor those agreements. If your ex-spouse fails to pay their share, creditors can pursue you. Bankruptcy can provide protection from this risk by discharging those debts.
7. The Automatic Stay is Limited in Divorce.  The automatic stay under Section 362 of the Bankruptcy Code, which halts most collection actions, does not typically apply to many divorce-related matters. For example, proceedings related to child custody, domestic support obligations, or marital status can continue. The stay primarily applies only when disputes involve assets of the bankruptcy estate.
8. Legal Guidance Matters.  Every situation is unique. Consulting both a divorce attorney and a bankruptcy attorney ensures you’re making informed decisions that protect your rights and future.

If you’re facing the complexities of divorce and bankruptcy, our experienced team is here to help. Contact us for personalized guidance to navigate these challenges with confidence.

By: Christina Vilaboa-Abel, Esq.

CAVA Law on UNIVISION’s “La Voz de la Mañana”

CAVA Law’s Christina Vilaboa-Abel had the privilege of appearing on UNIVISION’s “La Voz de la Mañana” today with host extraordinaire of “Reto Economía,” Erick Cuesta @erickcuestatv. Today the “Reto Economía” segment, which airs to provide the Hispanic community all over the country with financial advice, focused on the legal process of bankruptcy. Christina differentiated between the truths and the myths of the bankruptcy process for the audience. Thank you Erick Cuesta, Univision Noticias & ViX for inviting us on the air! Always aCAVAndo™!

Navigating Personal Guarantees: Understanding the Risks & Responsibilities as a Business Owner

Personal guarantees are common in various business transactions, yet many individuals may not fully understand their implications. In this blog post, we’ll delve into what personal guarantees are, why they are used, and the potential risks and considerations involved.

A personal guarantee is a legal commitment by an individual to take responsibility for the debt or obligations of another party, typically a business entity. By signing a personal guarantee, an individual agrees to repay the debt if the primary borrower (often a business) defaults on its obligations.

Lenders, creditors, and landlords often require personal guarantees as a form of security, especially when dealing with small businesses, startups, or individuals with limited credit history. Personal guarantees provide lenders with additional assurance that they will be repaid, even if the business entity fails to fulfill its obligations.

There are various kinds of personal guarantees. There are unconditional guarantees, through which the guarantor is liable for the full amount of the debt or obligation, without any conditions. There are limited guarantees, through which the guarantor’s liability is limited to a specific amount or scope of the debt. There are continuing guarantees, through which the guarantor’s liability extends to future obligations incurred by the borrower, even if not specifically outlined in the original agreement.

Signing a personal guarantee exposes the guarantor to personal financial risk, including potential loss of personal assets or credit damage. Guarantors are legally bound to fulfill the obligations outlined in the guarantee, even if the business fails or faces financial difficulties. Before signing a personal guarantee, it’s essential to consider alternative financing options and negotiate the terms of the guarantee, if possible.

Some tips for mitigating risks are: review the terms of the personal guarantee carefully and seek clarification on any ambiguous or unfamiliar terms; consult with a legal professional to understand your rights and obligations before signing a personal guarantee; if possible, negotiate the terms of the personal guarantee to limit your liability or add provisions for release.

Personal guarantees play a significant role in business transactions, providing lenders with additional security and assurance. However, they also entail significant risks for individuals who agree to take on personal liability. Before signing a personal guarantee, it’s crucial to understand the terms, risks, and alternatives available. Seeking legal advice and carefully evaluating the implications can help individuals make informed decisions and mitigate potential risks.

By: Christina Vilaboa-Abel, Esq.

FAQ: “Why Can’t I Just Be in a Chapter 7 Bankruptcy?!”

When faced with a sea of financial challenges, individuals who begin considering bankruptcy go into it with the uninformed assumption that filing bankruptcy is as easy as filing the case with the Court, pushing a few buttons, and getting debts eliminated.

If only that were true!

Most individuals who come to our office wanting to file bankruptcy arrive thinking they will file a Chapter 7 bankruptcy and walk away with their debts eliminated and problems resolved, however, the Bankruptcy Code is much broader than just this one chapter, and with good reason! What the general public does not grasp, at first blush, is that although they know Chapter 7 to be the “simplest,” and thus, the most “desirable” kind of bankruptcy to file, it is actually the most stringent and the hardest one to qualify for.

If you think about it, this makes sense! Chapter 7, in the best case scenario, can give an individual a fresh start and a chance for financial rebirth, without having to pay another dollar to creditors. It should, logically, be the hardest to qualify under! The debtor walks away with everything and creditors are left with nothing. As the institution in charge of assuring that “social scales” are balanced, for a court to allow such a thing, the debtor has to walk into the bankruptcy in dire straights. A debtor must show that s/he has just not had the income or assets  to pay their creditors for quite some time. If the Bankruptcy Court and the Bankruptcy Trustee assigned to a Chapter 7 case find that the debtor in a Chapter 7 bankruptcy has had disposable income or assets with unexempt value under his/her name in the last few years, the debtor will likely not qualify for a clean discharge of his/her debts under this chapter without a detailed and prolonged audit of the debtor’s finances by the Trustee. These audits, usually time-consuming and requiring the Debtor to appear for depositions before the Trustee, will likely produce something that will trigger that payment into the bankruptcy be required for the debtor to receive the discharge they long for. This is why it is immensely important that a debtor’s financials be analyzed every which way by a qualified bankruptcy attorney before a Chapter 7 case is filed.

Understanding the Chapter 7 Bankruptcy Qualification Analysis:

• Means Test: The means test compares your household income to the median income in your state. If your income is below the median, your income qualifies for a Chapter 7 bankruptcy filing. The caveat here is, household income must qualify! If one spouse needs to file bankruptcy, the non-filing spouse’s income must be reported within the filing, with no adverse effect to the non-filing spouse, as the Means Test looks at household income. If your household income slightly exceeds the median, additional calculations are made to determine if you may still qualify for Chapter 7 bankruptcy. Once the income review and means test are completed, the analysis moves onto determining “exempt property.”
• Exempt Property: Chapter 7 allows debtors to keep certain exempt property, such as a primary residence, some personal items (up to a certain statutorily-determined value), and tools of the trade. This part of the bankruptcy analysis is where, many times, it is determined that a Chapter 7 is likely not a good avenue for some; as the remaining non-exempt personal property will prevent a “clean discharge” of the debts. For example, if it is determined that a potential debtor has $4,000 in value of non-exempt personal property, the Chapter 7 Bankruptcy Trustee will require this unprotected amount be paid into the bankruptcy estate for pro-rata distribution to creditors in exchange for the debt discharge.
• No Transfers: Chapter 7 trustees have a look-back period of approximately two years, pre-bankruptcy, which means they can scrutinize about two years worth of a debtor’s financial transactions prior to filing bankruptcy. If a debtor thinks that they can transfer property out of their name, prior to filing bankruptcy, in order to qualify for a Chapter 7, think again. It will likely be found by the Trustee, and the debtor’s discharge will be withheld until the value of that property is paid back into the bankruptcy estate. A Chapter 7 Trustee’s financial scrutiny will also assure to look at a debtor’s payment app transactions, like Zelle, Venmo, and CashApp. Each transaction made using one of these apps must be justified by the Debtor at the time of filing. Although it is understood that these payment apps are commonplace and used to pay necessary expenses like rent and childcare, any transaction that a Debtor cannot justify, document, and explain to a Chapter 7 Trustee will count as a potential transfer, and as such, be categorized as an amount that the Debtor needs to pay back into the bankruptcy estate.

Chapter 7 bankruptcy offers a lifeline to individuals drowning in debt, providing an opportunity for a new beginning. The process is complex, requiring a detailed understanding of the qualification criteria. Filing this kind of bankruptcy without a detailed financial analysis, will more likely than not, lead the debtor down a difficult road. If you find yourself considering bankruptcy, consult with a qualified bankruptcy attorney to navigate the legal intricacies and ensure the best possible outcome for your financial future.

By: Christina Vilaboa-Abel, Esq.

CAVA Law is thrilled to announce that Miami-Dade County has voted us as the 2023 Silver Award Recipient for Best Bankruptcy Law Firm and the 2023 Bronze Award Recipient for Best Law firm, overall! Miami-Dade Favorites is organized and presented by The Miami Herald. We are grateful for our incredible team & all of our clients, all who have made this achievement possible. This award is a testament to our dedication & commitment to excellence; and also serves as prime evidence of our appreciation & love for YOU: the South Florida community!

 

CAVA Law chosen as “2023 Top Fundraiser” by Susan G. Komen

The Firm has been fundraising for the Susan G. Komen “More Than Pink” Walk, with the goal of fundraising for breast cancer research. Our staff, along with others who have joined us, will be walking as a team on October 14, 2023. We have, very appropriately, called ourselves Team “aCAVAndo con Breast Cancer.” Susan G. Komen has deemed us a “top fundraiser” this year, and has sent us a sign commemorating the achievement! We are honored to be able to fundraise for this cause.

September 30th marks the end of the Fiscal Year. If you are a small business owner, here’s a financial checklist to better assist you.

       

CAVA Law Sponsors the 2023 Coral Gables Bar Association Installation Gala

CAVA Law was thrilled to be the proud sponsor of the “Cafecito Bar” at the 2023 Coral Gables Bar Association (CGBA) Installation Gala.

Congratulations to the newly-installed 2023 Board for the CGBA!

CAVA Law presents at Ms. Esquire Luncheon, September 12, 2023

On Tuesday, September 12th, CAVA Law had the privilege and honor presenting at the Ms. Esquire Luncheon at Seasons 32 in the Gables. Ms. Esquire’s luncheons are always a wonderful opportunity to learn from different professionals, while enjoying a wonderful meal.  Christina, one of CAVA Law’s managing partners, presented on: the basics of insolvency and restructuring for non-bankruptcy practitioners, and the foundations of commercial credit for small businesses, how it is measured and reported, and how a small business can build their commercial credit. Thank you to Ms. Esquire for inviting CAVA Law to present for such a wonderful group of professionals!

When an individual is thinking of filing bankruptcy, income and assets must be analyzed in detail prior to filing in order to ascertain whether bankruptcy is a good option. In this video, you will get a summary explanation of the pre-bankruptcy asset review.