Frequently Asked Questions And Answers About Bankruptcy
Bankruptcy laws provide extraordinary protection and relief. Everyone is still eligible to file!
1. I heard the Bankruptcy Laws changed in 2005, so almost nobody is eligible to file a Chapter 7, right?
WRONG. A common misconception is that after the law changed in 2005, very few people are eligible to file Chapter 7. That is simply not true. Pelley Law Office, L.L.P., recently did a study comparing whether the percentage of Chapter 7s versus Chapter 13s we have filed since 2005 has significantly decreased. It has not. To the contrary, the percentage of 7s versus 13s we have filed has remained about the same!
2. If I do file a Chapter 13, then I pay back most (if not all) of my credit card debt, right?
WRONG. Another misconception is that if you do file a Chapter 13 bankruptcy, you always pay back your credit card or other similar unsecured non-priority debt. To the contrary, that is rarely the case.
3. What is the minimum amount of credit card debt I need to file a bankruptcy?
There is no minimum. However, if you have $30,000.00 worth of credit card debt and your credit cards are averaging 25 percent interest rates, then that is costing you $7,500.00 per year in interest alone. If you owe $40,000.00 of credit card debt at 25 percent, then you are being charged approximately $833.33 per month in interest! That means if you pay $850.00 per month to your credit cards, your total amount of credit card indebtedness is reduced approximately only $16.67 (and much of that $16.67 is probably being eaten up by over the limit fees and late payment penalties).
4. Will I lose my house?
Bankruptcy rules are designed to help you retain your property if that is your desire. In order to do so, there are certain requirements. Typically, you have to resume making the payments on your house beginning with the first payment that comes due after you file the bankruptcy. If you are behind on your house, Chapter 13 can help you get caught up. If you are current and stay current on your house, then either Chapter 7 or Chapter 13 will still allow you to retain your exempt homestead.
5. Will I lose my cars?
Like your home, the bankruptcy process is designed to help you keep the vehicles necessary for your family. Again, either Chapter 7 or Chapter 13 will provide the necessary protection so that you can retain the cars required to maintain your family needs. These are amongst the issues that we will specifically discuss in order to help you make the best choice.
6. What is the effect on my credit?
Proper utilization of the bankruptcy code will help you re-establish your credit very quickly. We will council you on how to rehabilitate your credit at the free initial consultation.
7. Will I ever be able to buy a house or a car again if I file a bankruptcy?
While it varies for each individual, our experience has been that financing is typically made available for the purchase of a new home or a new car soon after the bankruptcy is complete.
In fact, new vehicles are frequently acquired during the course of a normal bankruptcy.
8. Does Pelley Law Office, L.L.P., accept payment plans?
Yes. We understand you are having financial difficulties. That is the reason we provide a free initial consultation. We will discuss payment options at the free initial consultation. In almost all cases, once you quit paying the creditors you want to discharge, you will have more than enough money to file your bankruptcy. It is and extremely inexpensive procedure.
9. What if I want to pay some creditors and discharge others?
The bankruptcy code requires full disclosure. As long as you make full disclosure, the bankruptcy code allows you a great deal of latitude to pick and choose which creditors you pay. We will discuss each creditor individually. Typically, in a Chapter 7 you are not prohibited from paying anyone that you wish to pay. They are prohibited from collecting from you. In a Chapter 13, we will put together a plan reflecting those creditors that you wish to pay and ask the Court to approve that plan.
10. When will the telephone calls stop?
Immediately after the filing of the bankruptcy, the bankruptcy clerk notifies all of the creditors that you have listed. Upon the receipt of that notice, those creditors are bound by the Bankruptcy Code to cease all communication with you. They cannot sue you, call you, foreclose on your house, repossess any items from you, garnish any wages or take any other legal action.
In addition, if there are specific creditors that are harassing you in an extraordinary way, we will contact them for you immediately upon the filing of the bankruptcy, notify them of your case number and advise them that they are to cease and desist all activities.
11. What happens when I file the bankruptcy?
Immediately upon filing the bankruptcy, an automatic stay goes into effect. That means that no creditor can take any further action against you. That includes a foreclosure on your home, garnishment by the IRS, repossession of your vehicle, or the prosecution of a lawsuit or any other claim against you. No further telephone calls should be made to you, to your work, to your family, or to your friends.
12. Will I have to go to Court?
Court appearances vary for each individual. Typically, in a Chapter 7 bankruptcy you will have one informal hearing in front of a Trustee. The Trustee is not a judge. While the hearing before the Trustee is informal, it is “on the record.” As such, an attorney will be there to represent you.
An individual in a Chapter 13 bankruptcy will also have to go to a First Meeting of Creditors. It is also informal and will be in front of a Standing Chapter 13 Trustee.
An individual who files under either Chapter 7 or Chapter 13 may be required to have additional Court hearings. Those are not always possible to predict in advance. But, if you need to go, we will typically give you at least twenty days notice and you may rest assured that we will be there to represent you.
13. Will I lose all of my assets?
Both the Bankruptcy Code and the Texas Property Code have exemption statutes that are designed to help people protect their home, their car, their furniture, furnishing, clothing and personal effects. In addition, most clients qualify for a “wild card” exemption under the federal list of exemptions, which allows them to retain assets that would otherwise be non-exempt under the Texas Property Code. Normally, most debtors are not required to lose any property that they do not otherwise wish to voluntarily abandon. We will discuss both exemption statutes with you and help you choose the statute that is most beneficial to you.
14. What am I required to do?
You are under no commitment by meeting with us. We ask that you contact our office, set up an appointment and bring with you a complete list of every one you owe and approximately how much you owe them. We will also need to discuss your assets so that we can best protect them.
At the initial consultation, we will discuss our fee with you and a payment plan for you. If you decide to employ us at that point, then we will request that you complete a set of forms. We will go over the forms with you in detail. You will then be required to attend a “Meeting of Creditors”. This typically is the only appearance that you will need to make. That hearing normally lasts no more than three to ten minutes. It is unusual for any creditors to appear. Normally, only the Trustee, you, and an attorney will be present.
15. How do I pay if I am broke?
Since we have practiced in this area for over thirty five years, we understand the difficulties in paying attorney’s fees. We are happy to work with you. The attorneys fees in bankruptcy are extremely low in comparison to other types of legal fees. We will discuss payment options with you at the free initial consultation. You will not be required to come up with a large sum of money all at once unless that is your desire and in your best interest. In addition, since you will no longer have your normal obligations, most people are able to pay us out over a short period of time.
16. My house is up for foreclosure. How long can I wait to decide?
Do not wait. Since there is absolutely no charge for your first consultation with us, it is pointless to wait. Come see us immediately so that we can explain your alternatives and you can choose the option that is best for you. If you wait too long, it may be too late to stop the foreclosure or to stop the repossession.
17. If they have already repossessed my vehicle, is it too late to save it?
No. One of the great advantages of a Chapter 13 is that if you act immediately after your vehicle is repossessed, the Bankruptcy Code normally will require the creditor to return the vehicle to you. In a Chapter 13, you can then make arrangements to either pay the arrearage on the vehicle, repay the debt on the vehicle, or the value of the vehicle, whichever is most advantageous to you. However, if you wait and the vehicle is sold by the creditor after they have repossessed the vehicle, then it will then be too late to regain possession of your vehicle.
We are often able to allow you to pay the value of the vehicle rather than the full amount of the debt. This normally results in a substantial reduction in your monthly payment on your vehicle.
18. What are the differences between Chapter 7 and Chapter 13?
A Chapter 7 bankruptcy is typically the chapter that we recommend if you are qualified. We do that because Chapter 7 is the quickest, the cheapest and does the most for you. In a Chapter 7 bankruptcy, we normally file your bankruptcy and have your trustee meeting within 30 to 45 days. Typically, you will receive a discharge within 60 days after that meeting and you will be out of bankruptcy. In a Chapter 7, you must remain current on your payments on your vehicles and your house if you wish to retain them.
A Chapter 13 bankruptcy is different in that it is designed for people who are: (1) behind on their house and their property is about to be foreclosed upon; or (2) behind on their vehicles and their cars are about to be repossessed. It is also designed for people who are behind to the IRS, or those who simply make too much money each month to remain in Chapter 7. Chapter 13 has many advantages. For instance, we are often able to substantially reduce your payments on your vehicles. However, either chapter will typically allow you to discharge unsecured debts.
Our job during our initial and any subsequent consultations with you is to discuss the advantages and disadvantages of each chapter, to make recommendations to you and then to try to accomplish a successful plan of action so that we can achieve your desired goals. The primary goal is to help you obtain a fresh financial start.
19. Is bankruptcy better than going through a debt repayment program?
Yes, for several reasons. First, in a Chapter 13 plan, the Court will force your unsecured creditors to accept the plan even if you are paying them a very small percentage or making absolutely no payments toward their actual claim. A private service has no such power. In addition, once you file the bankruptcy, none of your creditors may file suit or take any further action against you. A private service has no power to stop any one individual creditor from taking such action. Further, in a Chapter 13, all interest stops on unsecured debt. That means the debt will no longer continue to grow. Best of all, at the conclusion of the typical Chapter 13 plan, not only has the interest been removed, the underlying debt will have been discharged as well.
20. If I have filed a bankruptcy before, can I file again?
21. Can you reduce my monthly payments on my car?
Normally, yes, in a Chapter 13. In a Chapter 7, usually you continue to make the regular payments on your car.
22. The IRS is charging me an arm and a leg in interest and penalties, will a bankruptcy help?
Absolutely. Normally all interest stops immediately upon the filing of a bankruptcy. We can usually remove the penalty that has previously been assessed in a Chapter 13.
23. I am thinking about paying one of my credit cards $500.00 to $1,000.00 before I come in for my free initial consultation, should I?
No. That would probably constitute a preference. The Trustee would then require the creditor to turn over the money to the Trustee. You would still owe the debt despite having made the payment.
24. I have been served with a lawsuit, what should I do?
Call the office for an appointment immediately. The bankruptcy will normally stop all litigation.
25. I am getting conflicting information on the Internet about bankruptcy, what should I do?
Ask an attorney that practices bankruptcy law every day at a free initial consultation, and do not believe the myths on the Internet.
26. Will it ruin my parents’/wife’s/husband’s/brother’s/sister’s/son’s/daughter’s/friend’s/uncle’s credit if I file bankruptcy?
27. If I file the bankruptcy, will I keep paying my creditors?
Typically, only those you want to keep. Frankly, once you quit paying the creditors you want to discharge, in most cases you will have more than enough money to file your bankruptcy.
28. Is my name going to be in the newspaper if I file a bankruptcy?
None of the local newspapers have reported filings for the last several years.
29. Are they going to take my parents/children’s property away from them?
30. When will I get another credit card?
As a general rule, you should start receiving credit card solicitations within two months after you file the bankruptcy.
31. Will somebody come to my house and look at my assets?
While this is possible, it almost never occurs.
32. Should I cash in my IRA/401(k) account in an attempt to avoid having to avoid filing bankruptcy?
No. If you do, it will most probably cause a very large tax liability on your part and it may detrimentally affect a subsequent bankruptcy.
The point of bankruptcy is to give you a fresh start financially. We can save all of your retirement money that qualifies under the IRS’s requirements for you. We will discuss that in advance. Please call us before wasting your life long savings.
CRIMINAL DEFENSE FAQ
1. I was arrested for Family Violence but my spouse/partner told the authorities that they do not want to prosecute. Will the case go away?
ABSOLUTELY NOT! Once the police make an arrest, then they turn the file over to the District Attorney’s Office. The matter is then in the hands of the State of Texas and even though your family member or dating partner does not want to have you prosecuted that is not the determining factor in the outcome of the case. In fact, one of the most common misconceptions about domestic violence cases is that the problem will go away if the accuser changes his or her mind. These cases are prosecuted whether or not the alleged victim wants to drop the charges.
In short, this problem is not going away. Your choices are to either face it now or forever suffer the consequences of an emotional mistake.
2. How Much Worse Is an Allegation of Choking Compared to a Regular Assault?
Much worse. Typically, a regular assault is charged as a misdemeanor offense. However, if there is an allegation that the victim was choked it is prosecuted as a third-degree felony and you face 10 years in prison.
Assault by choking/impeding breath has the following range of punishment:
- 2 to 10 years of confinement in the Texas Department of Correctional Facilities;
- Up to a $10,000 fine;
- Both such fine and confinement.
3. Because I was arrested for choking, does that mean I am going to suffer a lifetime of dealing with this allegation?
There is no question that you will unless you hire a law firm that has a lengthy record of success in assault cases. We do. Be glad you found us. It is critical to address these types of allegations from the very outset. Over the years, we have amassed a very impressive record of dismissals and Grand Jury “no bills” in assault by choking/impeding breath and other assault cases.
4. What Is Assault With Choking/Impeding Breath?
Texas Penal Code Section 22.01(b)(2) (B) states:
(t)he offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth.
5. What Is an Emergency Protective Order in Texas?
After an allegation of assault involving family violence, the complainant may apply for and obtain an Emergency Protective Order. The standard order provides that the citizen accused cannot go to the house of the complainant for 61 days. That is true even if he or she owns the home and the complainant is simply residing there and not paying a single bill.
Failure to comply with that order will result in additional criminal charges.
6. I got a call from a Detective who seemed very nice and said he just wanted to clear some things up and wanted me to give a statement so that he could close the file up on my case. Should I call him back?
NO, UNLESS YOU WANT A CRIMINAL RECORD AND TO GO TO JAIL. Any contact you have with the authorities is extraordinarily bad for you. Rest assured, the police, investigators, detectives and FBI are not going to be completely honest with you. If they contact you, the only thing that you should say is, “I want to talk to my attorney,” then hang up and dial our number.
7. If I am under investigation for a sexual offense, besides prison time what kind of additional problems am I facing?
Sex Offender Registration:
Pursuant to Tex. Code Crim. P. ART. 62, unless your case is dismissed or you are acquitted, then you will be required to register as a Sex Offender. Every time you move residences, you will be required to re-register 7 days before you move and within seven (7) days after you move.
If you go somewhere for 2 days, three times a month, then you must report to the authorities in that city or county as well. Failure to comply with registration requirements is another felony. Depending on the circumstances of the particular case, the range of punishment can be 180 days to 20 years in prison for EVERY SINGLE violation.
The police will also automatically be provided your Sex Offender status upon request when they run a check on your driver’s license or license plate number. In addition, the Texas Attorney General has authorized local governments as of 2003 to broadcast information about registered sex offenders on a local cable TV channel because it is “public information.”
8. I am an educator and have been contacted about an improper relationship with a student. What should I do?
DO NOT TALK TO ANYONE. KEEP YOUR MOUTH SHUT AND CALL US RIGHT NOW! You have heard and read the news, the hot button for prosecuting authorities right now is Improper Relationship With a Student cases. District attorneys are making an example in these types of cases, and educators are going to prison.
The very least of your worries is being placed on administrative leave, so do not speak to anyone about these allegations except for our attorneys!
TEXAS CODE OF CRIMINAL PROCEDURE 21.12
An employee of a public or private primary or secondary school commits an offense if the employee engages in:
(a) Sexual contact, sexual intercourse, or deviate sexual intercourse with a person who is enrolled in a public or private primary or secondary school at which the employee works; or
(b) Conduct described by Second 33.021, with a person described by Subdivision (1), regardless of the age of that person.
This type of offense is most often indicted as a second-degree felony, punishable by confinement in the Texas Department of Correctional Facilities from 2 to 20 years and/or up to a $10,000 fine.
If you or a loved one is under investigation for Felony Improper Relationship With a Student, do not delay hiring our experienced felony trial lawyers. The longer you wait, the stronger the case the State of Texas will build against you.
9. What is my best chance of avoiding a felony indictment?
SEE US TODAY. A “Grand Jury Packet” is your best shot of ending your nightmare before your case becomes a political issue. A “Packet” is typically a cover letter combined with all exculpatory evidence that our own investigation turns up which supports our position that your case should be thrown out.
Many, many times in the past we have submitted a “Packet” to the Grand Jury and it put an end to the criminal investigation/prosecution. More often than not, these “no-bill dismissals” occurred in assault investigations (family violence, aggravated assault, choking cases, sexual assaults, etc.). Unfortunately, many more times our less hurried clients who did not hire us in time suffered an unnecessary indictment and their lives spun into a turmoil that could have been avoided altogether. Do not delay. Call us today.
10. My friend or family member is in jail and bond has been set at an amount that is going to wipe me out financially, what should I do first: (a) get a bail bondsman, or (b) hire an attorney?
If bond is set at an excessively high amount, you can probably save thousands by hiring us first to file a Writ of Habeas Corpus – Motion to Reduce Bond. Our attorneys will not only file the Writ, but also guide you down the road successfully defending your loved one.
Typically, most bail bond companies will require you to pay 10% of the amount of the bail up front to post your bond. For example, if bond is set at $50,000, then you would have to pay the bail bondsman $5,000 up front to get out of jail and you will not get that money back and you still wouldn’t have a lawyer.
However, if our attorney fees are only $5,000 and after we file a Writ of Habeas Corpus and convince a District Judge that the magistrate’s bond is too high and he reduces the bond down to $10,000, then you would only be out of pocket $1,000 up front for the bail bondsman plus you would have already retained us with the $5,000 retainer (a total of $6,000 between paying the bail bondsman as well as paying our attorney fees to defend you). Kind of a “no-brainer.”
11. What should I do if I am being investigated for a felony?
Talk to us immediately. Before the Grand Jury convenes on your life-changing event/decision of whether or not to indict you, we can put together a “packet” to submit to the District Attorney for the Grand Jury. But, time is of the essence. Run, do not walk to our office if you are under investigation for any crime.
12. How does a felony prosecution work?
A felony allegation is so serious that it means that the citizen under investigation could be reprimanded into the custody of the Texas Department of Correctional Facilities for a period of up to 99 years or life.
For a misdemeanor prosecution to begin, all the State has to do is get a peace officer to sign a “probable cause affidavit,” an “Information” is then filed and the case begins.
However, a felony prosecution is so grave that before the case can formally proceed, a panel of 12 citizens must be empaneled at a Grand Jury Meeting and find that probable cause exists that a felony offense occurred against the peace and dignity of the State of Texas. That is not the trial you see on Boston Legal or other shows on TV. The Grand Jury meeting is behind closed doors and is the ultimate game changer in felony cases.
Without exception, a citizen accused of a felony offense should not attend nor submit any testimony to the Grand Jury without an attorney as that can be used against him/her at their actual trial in front of the Petite Jury (what you do see on TV).
13. Is the outcome of my case going to have an impact on my life?
YES. Even if you avoid a lengthy jail sentence, a conviction will define the rest of your life.
There are four types of criminal convictions that will affect your long-term ability to obtain employment:
I. Felony: Employers know that if they hire a convicted felon and he/she misbehaves, they are going to get sued.
II. Sex Offenses: Employers know that if they hire a sex offender, and the convicted sex offender acts improperly towards a co-worker or customer, they are going to get sued.
III. Violent Offenses: Employers know that if they hire a violent offender, and the violent offender later threatens or hits a customer or co-worker when a heated issue arises, they are going to get sued.
IV. Theft Offenses: Employers do not want employees stealing out of their cash register, so they are not going to hire someone with a theft conviction.
14. Since I was arrested, is there a chance of avoiding a lifetime of problems after this disaster?
YES, NO QUESTION…IF YOU GET US HIRED IMMEDIATELY.
DO NOT GIVE UP. To arrest you, the police only needed “probable cause.” That is very easy for them to allege in most cases. However, the District Attorney must prove you guilty “Beyond a Reasonable Doubt”in order to actually convict you. That is the highest evidentiary standard in the law. Just because you have been arrested DOES NOT mean that you are guilty. Do not forget that “probable cause” is only a tiny fraction of the evidence the government needs to hold you liable. Remember that you are presumed to be innocent under the Texas Code of Criminal Procedure!
WE CAN HELP YOU. You do not deal with the criminal justice system on a daily basis. We do. What people do not know about their constitutional rights will hurt them. You would not go into a gun fight with a butter knife. If you performed surgery on yourself, you would likely bleed to death. Ask yourself why you would even consider going into court facing incarceration without the best representation.
CALL US TODAY. Pelley Law Office, L.L.P. has helped thousands of clients in their time of need since 1974 … and we will be happy to help you in your crisis. See a Pelley attorney today before it is too late.
15. How can I get my bond reduced?
Hire us to file a Writ of Habeas Corpus – Motion to Reduce Bond before doing anything else. Pursuant to Article 17.15 of the Texas Code of Criminal Procedure, entitled “Rules for Fixing Amount of Bail,” we have successfully argued on most occasions that the bail that was currently set was excessive and unconstitutional based on the following reasons:
1. The bond is far above of what would be sufficiently high to give reasonable assurance that the undertaking would be complied with;
2. The power to require bail is currently set so high as to make it an instrument of oppression;
3. Considering the nature of the offense and the circumstances under which it was allegedly committed, and considering the same amount is excessive;
4. Considering the Defendant’s ability to make bond, and the proof taking upon the same;
5. Considering the future safety of the alleged victim of the alleged offense and that of the community.
16. I was arrested for possession of illegal drugs that I was caught with red-handed, am I certain to go to prison or be put on probation?
ABSOLUTELY NOT! YOU HAVE FOURTH AMENDMENT CONSTITUTIONAL RIGHTS!
If you have been arrested for possession or delivery of drugs, than it is absolutely imperative that you hire the right trial lawyer who can properly assert your constitutional rights. When you have an encounter with a police officer, you have many Fourth Amendment protections against warrantless searches and seizures. First of all, the police had to have a reason to come into contact with you. Secondly, they had to be looking in an appropriate place where they found something they reasonably thought was drugs or contraband if they actually had a warrant. YOUR Constitution entitles you to privacy rights and shelter from improper police intervention.
The police often go beyond the legal boundaries of where they can search for drugs or contraband. Whether on your person, in your car, or in your house-you have privacy rights that the police cannot violate. If they do, then the evidence can be thrown out and your case dismissed.
17. How do I escape my criminal record and am I eligible to file a Petition for Expunction or Non-Disclosure?
If you were acquitted at trial or the charges against you were eventually dismissed, then you can have your criminal record expunged after the applicable statute of limitations runs. After the expunction, the arrest would be removed from your criminal record completely. As a matter of fact, even if the statute of limitations has not run, you may be able to file a “Waiting Period Expunction.”
In cases where you are not eligible to obtain an expunction and you were not convicted, it is probably still possible to file a petition for non-disclosure. Then your arrest record would be sealed from all but a select few agencies.
The bottom line is, this is a very complicated area of law. A very small percentage of attorneys have a firm grasp on how to clean up your criminal record and mistakes of the past. Call us today for free and sound advice. You will be glad you did.
18. I was arrested for an assault offense, is there a chance that I can avoid a criminal conviction?
ABSOLUTELY. WE GET MORE DISMISSALS ON ASSAULT CASES THAN ALL OTHER TYPES OF CRIMES COMBINED. But, you have to know what you are doing or it can end in a life shattering disaster!
Even in the toughest cases, there are almost always a number of defenses available. We will pick apart the government’s case by our own independent investigation of:
- Was the accused acting in self-defense?
- Was the accused protecting an innocent third party?
- Was the crime committed accidentally?
- Can the identity of the accused be proven?
- Was it mutual combat – a fight agreed to by both the accused and the other person?
- Is there any evidence of physical injuries?
- Were there any eyewitnesses besides the citizen accused and the complaining witness?
– The list of inquiries goes on endlessly. You just have to know what to ask.
19. My probation officer has filed a Motion to Revoke my probation. Is there any hope to avoid a lengthy jail/prison sentence?
ABSOLUTELY. CALL US TODAY. Many, many times in the past we have been able to help our clients avoid prison time and continue their regular or deferred adjudication probation sentences. That has been true even in sex case violations. Our attorneys have successfully won many probation violation cases arising out of failed urinalysis (dirty UA), arrests on subsequent crimes, failures to report and other violations of the terms and conditions of probation. Do not delay. The State’s burden to put you behind bars following a Motion to Revoke is very low but our success rate is incredibly high. You need to call us right now.
20. My child has been arrested as a juvenile, what do I do and what is “Delinquent Conduct?”
Delinquent conduct is generally defined as conduct that if committed by an adult could result in imprisonment and a criminal record. Typically, once the authorities believe that “probable cause” exists that a juvenile between the ages of 10 and 17 committed an offense against the State of Texas (and if the juvenile is not caught in the act by the authorities) then a Directive for Apprehension is issued.
The Directive for Apprehension is like an arrest warrant for the juvenile. Typically, when the juvenile suspect is apprehended, they are taken to the juvenile detention center. The juvenile is entitled to a hearing on whether or not they will be released pending trial within 10 days and can be represented by counsel. The magistrate at the detention hearing will make the decision of (1) whether or not the juvenile is a flight risk (in other words, does the magistrate/judge feel confident that the juvenile will return to court to face the charges); and (2) whether or not the juvenile would be a danger to him/herself or others if released into the custody of their guardian prior to facing the charges. It is imperative to have competent legal representation at that 10-day hearing so that the juvenile is well represented from the beginning of the case. Anything that the juvenile says or does while incarcerated at the detention center can and will be used against them at trial.
21. Is my minor shoplifting arrest going to affect my life in a bad way if I do not get an attorney who knows how to get this off of my record?
NO QUESTION. Maybe you think that the worst consequence of a guilty plea or conviction for shoplifting is the embarrassment you feel. Think again. Shoplifting, like other theft offenses, is considered a “crime of moral turpitude.” A conviction for shoplifting is like an indictment against your character, one that will almost certainly impact your employment opportunities forever.
22. I was arrested for Burglary of a Habitation. Is there a chance this case can be thrown out altogether?
YES, BUT YOU ARE WALKING ON THIN ICE. If you have been arrested for Burglary of a Habitation, it is wrong to assume that you will be convicted and go to prison for 20 years. But, you are dreadfully wrong if you have false hopes that this charge might go away without serious implications. Judges and jurors hate the idea of someone walking into their own homes. You need us right now.
FAMILY LAW FAQS
1. Is it time to consult with a divorce lawyer?
If you are tired of being in your miserable marriage and ready to move on to the next stage of your life, our divorce team can help you make the transition more smooth. Since 1974, we have successfully represented family law clients throughout all of North Texas. We will properly handle all aspects of your divorce, including:
- Child custody and visitation
- Child support
- Marital property division
- Spousal maintenance (alimony)
- How much contact have you had with the child in the past?
- How will the health, safety and welfare of the child be affected?
- How close do you live to the child’s other parent?
- Is there any evidence of child abuse?
- Are you mentally and physically able to properly parent the child?
- If the child is 12 or older, where does he or she prefer to live?
- Either parent has a job loss;
- Either parent changes jobs;
- Financial needs of child change;
- The child reaches age 18.
- Abandonment, disinterest or failure to maintain contact;
- Child abuse or neglect (of the child in question or of another child);
- A parent’s mental illness, mental disability or alcohol or drug-induced incapacity;
- A parent’s conviction or incarceration for a felony offense;
- Failure to provide support.
2. I have been the victim of or accused of domestic violence or family violence and need a divorce. Can you help me?
ABSOLUTELY! WE ARE UNIQUELY EQUIPPED WITH EXPERIENCED DIVORCE LAWYERS, A FORMER FAMILY VIOLENCE PROSECUTOR AND 81 YEARS OF CRIMINAL DEFENSE TRIAL ATTORNEYS. YOU HAVE FOUND THE RIGHT FIRM!
3. How will the judge determine which parent will have physical and legal custody of our child when we divorce?
In Texas, the primary consideration in child custody battles is what is in the best interests of the child. The court considers a number of factors, including but not limited to:
4. How is the amount of Child Support typically determined in Texas?
Usually, child support payments are determined by using the child support guidelines in the Family Code. The weighing factors include the amount of the income, the total number of children, any special needs of the children, and can also embrace many other complex circumstances.
5. My spouse is abusing me emotionally and physically. I can’t take it anymore. How can I make it stop?
A restraining order can be a powerful tool for protecting a person who has been the victim of domestic violence, spousal abuse, terroristic threats or harassment. When filed based on false allegations, a restraining order can also be a weapon used to unfairly punish an innocent party in a divorce or another family dispute. We can help you regardless of which side of that paradigm that you fall.
We stand for truth and fairness in divorce. We are aggressive advocates for our clients’ rights and act quickly to protect their interests and well-being. We know how to use restraining orders to give a measure of security and protection to victims of domestic violence. We also know how to fight restraining orders sought for the wrong reasons.
We believe that no one should use a false allegation of abuse in order to obtain a restraining order. That is a manipulative ploy that is all too often designed to influence spousal maintenance or child custody in divorce. We are dedicated to exposing these underhanded tactics whenever they occur.
At the same time, we stand up for victims of abuse. We will use our litigation skills and knowledge of the law in order to protect a client who fears for his or her safety or the safety of a child.
6. What are Child Support Modifications & Enforcements in Texas?
When a parent’s financial situation changes, a modification to child support may be necessary. Texas courts will consider a child support modification if:
A modification may not be granted if a parent stops working voluntarily or becomes underemployed.
In addition to modifications, our law firm can assist you with child support enforcements. If you are not receiving child support, or the payor is behind on payments, the court may issue an enforcement order.
7. How do I get Spousal Maintenance in Texas?
Alimony is technically called Spousal Maintenance in Texas. Spousal Maintenance is a payment made from a higher-earning spouse to a lower-earning spouse. It is largely based on the needs of the future ex-spouse.
Alimony is not automatic. Texas law requires the party requesting Maintenance to show economic need for those funds. In certain circumstances, you may be able to get Temporary Support ordered by the Court pending a final disposition of the divorce.
8. What are the two most important things that I DO NOT do with my child’s other biological parent?
1. DO NOT RELY ON AN INFORMAL AGREEMENT with the other party to reduce your child support or alimony. Unless the Court Order is legally and officially modified, you still owe them the money!
2. DO NOT DELAY. Modifications are retroactive only to the date the petition for modification was filed, not to the date your circumstances changed.
9. What is a “substantial change in circumstances” when it comes to modification and enforcement of child support or spousal maintenance?
LOSS OF A JOB is the best example. Child support obligations are based on your income. If your income changes significantly – or disappears altogether – your child support payment should reflect your current circumstances. But, again you cannot do that without going through the court.
MOVING. We frequently handle post-divorce modification of custody and visitation because one parent wants to move away with the children. Our lawyers can represent you if you are seeking a modification or if you fear your parenting time may be jeopardized by relocation.
10. We have a lot of assets and I want to make sure I do not get taken advantage of in the divorce. What should I do?
HIRE US YESTERDAY!
Texas community property laws can be very complicated. This is especially true when one or both of the parties of the marriage have a high level of income or own their own business, have investments in real estate, a closely-held corporation, stocks, bonds, an IRA, 401k, CDs or other assets.
11. Why is Pelley Law Office, L.L.P. the right law firm for me in my divorce that is going to involve some substantial assets and/or debts?
WE ARE A VERY UNIQUE COMBINATION. NOT ONLY ARE WE A FAMILY LAW FIRM, WE ARE ALSO A FINANCIAL AND CRIMINAL LAW FIRM. THAT IS A RARE COMBINATION.
In these cases, it is in your best interest to have our skilled trial attorneys on your side who have extensive experience in both complex domestic relations as well as financial matters. Many high asset property division cases also often involve complex child custody and child support issues as well. Some matters have collateral criminal issues as well.
12. I’m going through divorce and I suspect my soon-to-be ex is hiding assets from me. I’m so frustrated, is there anything I can do?
YES. In divorce cases involving substantial income and property, suspicions can arise that one party is unlawfully hiding assets in an effort to deny the other party of their fair share during the division of property. You need to have battle-tested divorce lawyers on your side as well as our experienced financial attorneys. Our team has both. Most divorce firms do not.
If you suspect your spouse is hiding assets during or in preparation for a divorce or is running up debt in hopes of sticking you with the bill, we can help. We have the experience and resources necessary to conduct a thorough investigation into your individual and marital finances in order to detect irregularities that may indicate an incomplete disclosure of marital assets.
13. What does “community property” actually mean in Texas?
Texas is a community property state. Community property can be a difficult concept to understand. Most people assume that community property means that assets are divided 50/50 in a divorce. That is not exactly true.
Community property means that all assets and all debts acquired after the date of the marriage are one-hundred percent yours and one-hundred percent your spouse’s. How the assets and liabilities are divided in a divorce depends on many factors.
14. So what is the difference between “separate property” and “community property” in Texas?
Assets or debts acquired before the marriage are generally considered to be separate property or obligations. Another example of separate property is that which is received by way of inheritance. However, there are circumstances in which separate property can become commingled with or become community marital property. Also, although an asset may be originally sole separate property, the appreciation of that asset which accrues after the date of the marriage is community property. This can make the division of assets and debt much more complicated.
It is ultimately up to the Court to determine the equitable or fair division of marital property during divorce. Accordingly, you need our experienced advocates who have extensive financial knowledge in order to best represent your interests. At Pelley Law Office, L.L.P., our unique knowledge as financial lawyers and as Texas divorce trial attorneys since 1974 gives us an upper hand in disputes over both separate and community property.
15. We want to adopt. What are the steps?
Bringing a new child into a loving, supportive family and offering that child a chance at a better life is the true purpose of adoption. Adoption is an act of love. It should be a happy event. It should not be overly complicated or stressful.
Unfortunately, questions and complications arise all too often in adoption. Many times, we see clients who are well into the adoption process and who encounter stumbling blocks that could easily have been avoided with proper guidance early on.
We encourage individuals and couples in North Texas who are considering adoption to speak to one of our experienced attorneys. We know the time, money and stress that can be saved by clearly understanding your rights, the rights of the child’s birth parents and the legal process from the outset. We also know the heartache and disappointment that can be avoided by having appropriate representation.
We want every adoptive parent to have the benefit of knowledgeable legal counsel. We also want to ensure that no adoption is derailed because of a needless mistake or lack of due diligence.
16. My child is in a horrible living situation. Can I terminate their biological parent’s rights?
The termination of parental rights is a drastic step that should only be taken when it is necessary to protect the safety or well being of a child. Termination of parental rights is not punishment. It is an action taken to allow others to assume clear responsibility for the child’s well being without interference.
In Texas, the courts can order the termination of parental rights on several grounds, including but not limited to:
The courts have one overriding concern in deciding on the termination of parental rights, and that is what is in the best interest of the child in question. We share that concern, and will take all appropriate action to protect a child’s safety, security and well-being. Sometimes that requires seeking the termination of parental rights.
17. Do I have any rights with regards to my grandchildren?
In Texas, the rights of a grandparent to maintain a relationship with a grandchild – even over the objection of the child’s parents – have a long and complex history. Although a landmark decision defined some of these rights in 2000 (Troxel v. Granville), the practical application of grandparents’ rights in Texas family courts is still evolving.
If you are a grandparent who is seeking visitation, you should also know that Texas law provides you with specific rights. The nature and extent of those rights depends almost entirely on the specifics of the situation.
18. How do I establish paternity in Texas?
Paternity is not as simple of a matter as it might seem. There are both legal and biological aspects to paternity. For example, in Texas, any child born within a marriage is presumed to be the husband’s child.
If a child is born outside a marriage, there is technically no legal father unless paternity is established, either by consent (in layman’s terms, signing the birth certificate) or through a paternity suit.
These days, biological paternity is relatively easy to establish through DNA genetic testing. These paternity tests can even be court-ordered, if necessary to establish legal responsibility for a child.
That is most often what paternity suits are about – responsibility for a child. Legal fathers have a duty to provide for their children. They will be ordered to pay child support or face severe civil and criminal consequences.
Establishing legal paternity can also be about exercising the parental rights of a father. Until paternity is established, a biological father may have no legal grounds to seek visitation or custody with the child he helped bring into the world.
Finally, paternity suits may also involve defending a parent-child relationship against unwanted intrusion. Sometimes an outside party claims paternity of a child born into a relationship and seeks to exercise parental rights to visitation.
19. What are my rights as a father?
As a father, you are not just a guy who brings home a paycheck. However, that is how many fathers feel after getting the short end of the stick in a child custody arrangement. Having an experienced fathers’ rights attorney can help you achieve the results you need to maintain a meaningful relationship with your child.
Every situation is different. Some fathers wish to spend more time with their children after divorce. Some fathers wish to provide for their child by paying child support. Some fathers seek legal rights through paternity actions.
Recent studies and common sense tell us that children whose fathers have an active role in their lives are less likely to get in trouble in school and with the law and more likely to get better grades and succeed in life. Our attorneys understand how important it is to you and your child that you have a meaningful role in his or her life. We will use our legal skills and experience to protect your rights as a father.
20. CPS is saying that I am not fit to be a parent. I love my children. What is going on and what do I do?
In Texas, Child Protective Services (CPS) is empowered to intervene in cases involving allegations of child endangerment, criminal child neglect, domestic violence and child sexual abuse. It has been our experience for years that CPS is way too over-zealous and has a tendency to break up functional homes.
If an incident has been reported at your house, then it is not uncommon for Child Protective Services to intervene, even if it is for nothing more than a forensic interview with you and your children. That forensic interview can ruin entire families.
At Pelley Law Office, L.L.P., we have seen far too many examples of false reports leading to Child Protective Services intervention. Unfortunately, most parents rely on the notion that if nothing happened, CPS would not interfere with their lives and the lives of their children. That is almost never the case.
There may be a high risk that your children will be removed and placed into foster care. There is also a possibility that CPS may ask the court to have your children permanently removed. Any delay in retaining an experienced CPS lawyer will increase the chances of that happening. Since we are experienced domestic relations and criminal lawyers, we can help guide you through all aspects of your situation.