California questioner asks about finances after husband abandons house and marriage.
Abandonment Law & Legal Definition
Abandonment in legal terminology may involve different matters and therefore have different meanings. Examples include:
Abandoned personal property and the laws governing how to property dispose of same or how to make a bona fide attempt to locate the owner before disposal. Abandoned personal property is that to which the owner has voluntarily relinquished all right, title, claim and possession, with the intention of terminating his ownership, but without vesting ownership in any other person, and without the intention of reclaiming any future rights therein, such as reclaiming future possession or resuming ownership, possession, or enjoyment of the property.
Abandoned trademark rights refer to a lack of a bona fide commercial use of a trademark for a certain length of time so that the exclusive rights of use of the trademark are relinquished and another may adopt the mark or use such abandonment as a defense to a claim or infringement, unfair competition, or dilution by a trademark owner.
Abandonment also applies to the husband/wife or parent/child relationship, when a person has severed ties with and failed to provide support to the other related person for such length of time to find that the familial relationship ceases to exist legally, in order to pursue criminal charges, annulment, divorce, adoption, or emancipation. In fault divorce states, a party guilty of abandonment may be found at fault, constituting grounds for a divorce, which may be a factor in property division, support, and custody issues. However, merely moving out of a marital home, particularly to a nearby location, does not constitute a fault ground of abandonment. Statutes don't necessarily provide a time period to define abandonment, but often base the finding of abandonment on evidence of an intention not to return.
Abandonment is also used in bankruptcy law to define what property constitutes the estate of the debtor to be administered by the trustee. Property of the estate may be abandoned at the instigation of the trustee if it is of inconsequential value and benefit to the estate. This method of abandonment has been referred to as "proposed abandonment." Property of the estate may be abandoned pursuant to a request by a party in interest for an order of the Bankruptcy Court directing the trustee to abandon property when such property is burdensome to the estate or that is of inconsequential value and benefit to the estate. This method of abandonment has been referred to as "compelled abandonment." Also, all scheduled property which remains unadministered upon closing of the case is deemed abandoned from the estate and regarded as administered for purposes of closing and reopening the case. This final method of abandonment has been referred to as "deemed abandonment."
In another context, abandonment is a process by which the court releases property from its control. This occurs when property of the estate is of little or no value to the estate. If the debtor's real estate is worth less than the mortgages against it, the trustee may "abandon" the property rather than administer it. If a debtor in bankruptcy reaffirms the mortgage of a property to remain liable for the debt, the property may need to be abandoned by the trustees so that it is not sold or otherwise administered under bankruptcy procedures.
For contract law purposes, abandonment is of a contract by mutual consent is held to be effective to discharge its obligations, even where a new contract containing one or more of the same term is simultaneously entered into. Such abandonment terminates or discharges the contract for purposes of further performance, but keeps it alive for the purposes of bringing an action and measuring the recovery. The primary right to further performance of the promise is discharged and is replaced by a remedial right to damages. The duty of the injured party to perform his own promise is also discharged.
The loss of rights invokes the term abandonment in many other applications of the law, generally involving the failure to pursue legal rights or fulfill legal obligations leading to relinquishing one's claim to an interest in a thing or a legal right.
For example, abandonment in some states consists of the following four elements:
*"Departure from the marital residence."
* "Without the intent to return." This means a permanent departure. It is not a temporary separation, such as one due to military orders.
* "Without the consent of the other spouse."
* "Without legal justification or excuse." This means that the defendant left without a good reason. What is a good reason? The law does not specifically define how substantial the excuse or provocation must be in order to justify departure from the marital residence.
One state law provides as follows: "Notwithstanding the provisions of subsection (a) of this section, a spouse who abandons his or her spouse without cause shall be liable for the reasonable support of such other spouse while abandoned."
State laws vary, so local laws should be consulted for applicability in your area.
The following is an example of a state statute governing abandoned property:
" Section 8. If such property remains unclaimed in the possession of such police department or member thereof for one month and the owner thereof or his place of abode or business is unknown, or if the owner and his place of abode or business are known and the owner, after receipt by registered mail of a written notice from such department or member to take possession of said property, refuses or fails for a period of ten days following said receipt so to do, such department may sell the same, excepting money unclaimed, by public auction, notice of the time and place of sale, with a description of the property to be sold, first being given by publishing the same once in each of three successive weeks in a newspaper published in such city. Any violation of the provisions of this section shall be punished by a fine of not less than fifty nor more than one hundred dollars and by forfeiture of any such property obtained as a result of such violation."
The following is a Michigan criminal family abandonment statute:
Desertion, abandonment, or refusal or neglect to provide shelter, food, care, and clothing; felony; penalty; bond; probation; failure to comply with conditions in bond; forfeiture of bond; disposition of sums received; continuing offense; proof.
* (1) A person who deserts and abandons his or her spouse or deserts and abandons his or her children under 17 years of age, without providing necessary and proper shelter, food, care, and clothing for them, and a person who being of sufficient ability fails, neglects, or refuses to provide necessary and proper shelter, food, care, and clothing for his or her spouse or his or her children under 17 years of age, is guilty of a felony, punishable by imprisonment in a state correctional facility for not less than 1 year and not more than 3 years, or by imprisonment in the county jail for not less than 3 months and not more than 1 year.
* (2) If at any time before sentence the defendant enters into bond to the people of the state of Michigan in such penal sum for such term and with such surety or sureties as may be fixed by the court, conditioned that he or she will furnish his or her spouse and children with necessary and proper shelter, food, care, and clothing, or will pay to the clerk of the court, or other designated person, such sums of money at such times as the court shall order to be used to provide food, shelter, and clothing for his or her spouse and children, or either of them, then the court may make an order placing the defendant in charge of a probation officer. The court may require that the defendant shall from time to time report to the probation officer as provided by law. The court may extend the period of probation from time to time or the court may defer sentence in the cause, but no term of any bond or any probation period shall exceed the maximum term of imprisonment as provided for in this section.
* (3) Upon failure of the defendant to comply with any of the conditions contained in the bond, the defendant may be ordered to appear before the court and show cause why sentence should not be imposed, whereupon the court may pass sentence, or for good cause shown may modify the order and further defer sentence as may be just and proper. Whenever the whereabouts of the defendant is unknown, the court may summarily issue a bench warrant for the arrest of the defendant.
* (4) The court, upon default by the defendant to comply with the conditions of the bond and the orders of the court, shall notify the prosecuting attorney, who shall immediately file a petition in the court in which the cause is pending to declare the bond forfeited. A copy of the petition and a notice of hearing on the petition shall be served upon the surety or sureties, if any, named in the bond at least 4 days before the hearing of the petition. Upon holding a hearing on the petition, the court may declare the bond forfeited. When so ordered, the prosecuting attorney shall immediately institute the necessary action to collect the principal sum of the bond. If a cash bond has been filed, the cash bond shall be declared forfeited by the court.
* (5) All sums received from bonds being forfeited shall be paid to the clerk of the court, who shall hold and disburse the money for the use of those entitled to the money in accordance with the orders of the court for their necessary food, care, shelter, and clothing.
* (6) Desertion, abandonment, or refusal or neglect to provide necessary and proper shelter, food, care, and clothing as provided in this section shall be considered to be a continuing offense and may be so set out in any complaint or information. Proof of the offense charged at any time during the period alleged in the complaint or information shall be considered proof of a violation of this section."
Bankruptcy Law Overview and Information
Bankruptcy law aims to allow the debtor to make a fresh start, not to be punished for inability to pay debts. The process of bankruptcy provides for the development of a plan that allows a debtor, who is unable to pay his creditors, to resolve his debts through the division of his assets among his creditors. Bankruptcy law allows certain debtors to be discharged of the financial obligations they have accumulated, after their assets are distributed, even if their debts have not been paid in full. Some bankruptcy proceedings allow a debtor to stay in business and use business income to pay his or her debts.
Bankruptcy law is federal statutory law contained in Title 11 of the United States Code. Congress passed the Bankruptcy Code under its Constitutional grant of authority to "establish. . . uniform laws on the subject of Bankruptcy throughout the United States." States are not empowered to regulate bankruptcy, but they may enact laws that govern other aspects of the debtor-creditor relationship. A number of sections of Title 11 incorporate the debtor-creditor law of the individual states. Various provisions of the Bankruptcy Code also establish the priority of creditors' interests.
Bankruptcy proceedings are conducted in the United States Bankruptcy Courts. These courts are a branch of the District Courts of The United States. The United States Trustees were established by Congress to handle many of the supervisory and administrative duties of bankruptcy proceedings. Proceedings in bankruptcy courts are governed by the Bankruptcy Rules which were promulgated by the Supreme Court under the authority of Congress.
A bankruptcy proceeding can either be entered into voluntarily by a debtor or initiated by creditors. After a bankruptcy proceeding is filed, creditors generally are prevented from pursuing debt collection outside of the proceeding. The debtor is not allowed to transfer property that has been declared part of the estate subject to proceedings. Furthermore, scrutiny may be made of certain pre-proceeding transfers of property, secured interests, and liens, which may be delayed or invalidated. Hiding assets, fraudulent conveyances of assets, and preferential transfers are subject to scrutiny and potentially may result in criminal liability. However, the Bankruptcy Code and applicable rules do allow pre-bankruptcy planning which includes paying regular expenses, certain debts, and do not require equal payments to all creditors. With proper preparation, few individual debtors in Chapter 7 are required to surrender assets for liquidation. Preparation and careful consideration in achieving legal compliance are the key to success.
There are two basic types of Bankruptcy proceedings. A filing under Chapter 7 is called liquidation. It is the most common type of bankruptcy proceeding. Liquidation involves the appointment of a trustee who collects the non-exempt property of the debtor, sells it and distributes the proceeds to the creditors. Some debts, such as alimony and child support, taxes, and fraudulent transactions are not dischargeable in bankruptcy. Filing a bankruptcy petition automatically suspends all existing legal actions and is often used to avoid foreclosure or imposition of judgment. After 45 or more days a creditor with a debt secured by real or personal property can petition the court to have the "automatic stay" of legal rights removed and a foreclosure to proceed. Once a person is declared bankrupt, they cannot file for bankruptcy again for seven years.
Chapter 11 bankruptcy allows a business to reorganize and refinance to be able to prevent final insolvency. Often there is no trustee, but a "debtor in possession," and working out a plan of reorganization often takes a substantial amount of time. The final plan often requires creditors to take only a small percentage of the debts owed them or to take payment over a long period of time. Chapter 13 is similar to Chapter 11, but is for individuals, rather than businesses, to work out payment schedules.
Creditors also may initiate adversary proceedings to determine the validity or priority of a lien, to determine the validity of a debt, to obtain an injunction, or to subordinate a claim of another creditor. The debtor in possession may institute an adversary proceeding to recover money or property for the estate. A creditors' committee may be authorized by the bankruptcy court to pursue certain legal rights which the debtor has failed to pursue.
Bankruptcy typically requires the filing of various forms, which must be carefully prepared as required by federal and local rules. Bankruptcy lawyers are experienced in filing bankruptcy petitions and other required filings, representing creditors and debtors at hearings, meetings and adversary proceedings, filing motions for relief from a stay of proceedings, objecting to claims or discharges, preparing reorganization plans, and advocating for the best outcome for their clients' interests.
In addition to bankruptcy, bankruptcy lawyers may handle the following matters: problems with debt collectors, tax problems with the Internal Revenue Service, liens, levies, wage garnishments, back tax problems, IRS offers in compromise, IRS installment plan arrangements, and IRS audits.
Bankruptcy Chapter 13 Law & Legal Definition
Bankruptcy law provides for the development of a plan that allows a debtor, who is unable to pay his creditors, to resolve his debts through the division of his assets among his creditors.The philosophy behind the law is to allow the debtor to make a fresh start, not to be punished for inability to pay debts. Bankruptcy law allows certain debtors to be discharged of the financial obligations they have accumulated, after their assets are distributed, even if their debts have not been paid in full.
Chapter 13 allows individuals who have reliable incomes to pay all or a portion of their debts under protection and supervision of the court. Under Chapter 13, you file a bankruptcy petition and a proposed payment plan with the U.S. Bankruptcy Court. The law requires that the payments have a value at least equal to what would have been distributed in a Chapter 7 liquidation case. An important feature of Chapter 13 is that you will be permitted to keep all your assets while the plan is in effect and after you have successfully completed it.
Bankruptcy Chapter 7 Law & Legal Definition
There are two basic types of Bankruptcy proceedings. A filing under Chapter 7 is called liquidation. It is the most common type of bankruptcy proceeding. Liquidation involves the appointment of a trustee who collects the non-exempt property of the debtor, sells it and distributes the proceeds to the creditors. Not dischargeable in bankruptcy are alimony and child support, taxes, and fraudulent transactions. To qualify for relief under chapter 7 of the Bankruptcy Code, the debtor may be an individual, a partnership, or a corporation or other business entity. Filing a bankruptcy petition automatically suspends all existing legal actions and is often used to forestall foreclosure or imposition of judgment. After 45 or more days a creditor with a debt secured by real or personal property can petition the court to have the "automatic stay" of legal rights removed and a foreclosure to proceed. When the court formally declares a party as a bankrupt, a party cannot file for bankruptcy again for seven years.
Chapter 11 bankruptcy allows a business to reorganize and refinance to be able to prevent final insolvency. Often there is no trustee, but a "debtor in possession," and considerable time to present a plan of reorganization. The final plan often requires creditors to take only a small percentage of the debts owed them or to take payment over a long period of time. Chapter 13 is similar to Chapter 11, but is for individuals to work out payment schedules.
The Bankruptcy Code provides that the following taxes are not dischargeable:
1. Any tax entitled to priority under Section 507 of the Bankruptcy Code;
2. Any tax for which a required return was not filed or which a late return was filed if that late return was filed within two years of the Chapter 7 petition;
3. Any tax for which the debtor filed a fraudulent return or which the debtor otherwise tried to willfully evade. However, such a liability might be dischargeable in Chapter 13.
Divorce Law & Legal Definition
A divorce is the legal termination of a marriage by a court in a legal proceeding, requiring a petition or complaint for divorce (or dissolution in some states) by one party.There are two types of divorce-- fault and no-fault. A fault divorce is a judicial termination of a marriage based on marital misconduct or other statutory cause requiring proof in a court of law by the divorcing party that the divorcee had done one of several enumerated things as sufficient grounds for the divorce. All states now have adopted some form of no-fault divorce; although some such as New York, restrict the availability of no-fault divorce and retain fault divorce generally. A no-fault divorce is one in which neither party is required to prove fault, and one party must allege and testify only that either irretrievable breakdown of the marriage or irreconcilable differences between the parties makes termination of the marriage appropriate. Many states continue to offer a separation agreement or decree, under which the right to cohabitation is terminated but the marriage is not dissolved and the marital status of the parties is unaltered.
State law governs divorces, so the petitioning or complaining party can only file in the state in which he/she is and has been a resident for a certain period of time, which varies by state. The most common issues in divorces are division of property, child custody and support, alimony (spousal support), child visitation and attorney's fees. Only state courts have jurisdiction over divorces, so the petitioning or complaining party can only file in the state in which he/she is and has been a resident for a period of time. In most states, the legal process of the divorce procedures take some time, to allow for a chance of reconciliation. The divorce decree is a court order that states the rights and responsibilities of the divorced parties, including the basic information regarding the divorce, case number, parties, date of divorce, and terms the parties have agreed upon.