Tag Archives: way

The Zen of Divorce

 

Mark J. Bamberger, Esq., Owner and Attorney at Law

The Mark Bamberger Co., LLC

Offices in Tipp City (Dayton), West Chester, and Enon, Ohio

 

To divorce or not to divorce; that is not only the question, but often the life choice. The painful and agonizing decision to separate one’s life from another that they once loved, if not cherished, can be the worst of the worst of times. Even in today’s challenged economy, the decision to get a dissolution or divorce is often the hardest decision someone has to make in their entire lives.

 

Our parents used to say that we “stayed together for the kids”. However, our culture came to realize that two functional homesteads were often better for the kids than one dysfunctional one. Although separation is a traumatic and very complex condition, there are additional legal considerations that make it even more complex. It is my job as their legal “counselor” to help them weigh all the options. The word “counselor” is apt since in those trying times I seem to be more emotional support mechanism than attorney.

 

In many cases, the other party in the divorce is represented by counsel, which makes my job a lot easier. It is usually far easier and more efficient to deal with another professional and clear-thinking attorney to get a divorce completed. In some nightmarish scenarios, the other side represents themselves “pro-se” (by themselves). This can be painful since the other side is often too arrogant, too prideful, and/or too poor to retain counsel. There’s a reason we go to law school and have to pass a 20-hour bar exam!

 

So many times, we at The Mark Bamberger Co., LLC deal with divorce affiliated with bankruptcy, or civil litigation, or even criminal defense. We try to counsel those retaining us for their divorce representation that all these other myriad issues may also come into play. Often, filing a bankruptcy is the best way to get out from under staggering debt that could haunt each of the divorcing parties and their progeny for a generation to come. We tell our clients that if they file bankruptcy on joint debts (those held jointly between both spouses), the creditors will visit their harassment and court actions on the other soon-to-be-ex spouse. Not all of our clients are upset at that prospect. In many situations, bankruptcy (especially under Chapter 7 of the bankruptcy code) allows a “new start”.

 

Some of our clients favor a dissolution; where both parties sit down and decide issues like parental custody, parental visitation, child and/or spousal support, and personal and real property separation. This can be a civil, reasonably fast, and inexpensive way to divorce in Ohio and most other jurisdictions. Others will attempt a non-contested divorce, where my staff prepares the documents and terms for our client. Here, we file the necessary materials with the court and perfect service to the Defendant (other spouse) to make sure they received the documents. The Defendant then has 28 days (in reality much more) to either do nothing, agree, or contest the terms. If they contest, it becomes a contested divorce, which needless to say is the most expensive, time-consuming, and often painful option. We have had many cases that began non-contested or a dissolution, then became contested (read “ugly”). Not often do they go the other way, but it can happen,

The bottom line is this; divorce is complicated; emotionally, financially, and legally. We at The Mark Bamberger Co., LLC try to counsel our clients about the inter-disciplinary aspects of divorce and help them navigate through some of the most traumatic and painful months of their lives. It is never easy, but usually the sun does shine after the rainfall of tears has stopped.

 

MJB 4/11

The Dark Side of Foreclosure

As if filing bankruptcy was not tough enough…

Clients walk into the offices of The Mark Bamberger Company with some dreadful problems.  One of the more common is the threat or ongoing nightmare of a foreclosure.  In some cases, their lender is saying it is right on the horizon.  In more cases foreclosure has been commenced.  What is important to know is that the filing of a foreclosure complaint is only the first step of a long process; ending in a sheriff’s auction sale of the property out from under my clients.  This process can take between three and 18 months; depending on how vigorously the client fights, how clever their attorney is in stalling for time or negotiating a refinance or loan modification, or how badly the lender really wants the property.

The Automatic Stay

Often I am asked how foreclosure ties into bankruptcy.  Whether the bankruptcy is under Chapter 7 or Chapter 13, the answer is roughly the same.  Filing bankruptcy puts ALL pending or ongoing legal action “on ice”.  This is legally termed the “automatic stay”.  The only way a creditor gets out of this is to wait out the discharge of the bankruptcy or move the bankruptcy court for relief from the automatic stay; which often takes about as long as the bankruptcy itself.

Never Surrender

Bankruptcy CAN be an efficient way to stop a foreclosure long enough to negotiate a deal with the lender.  Before the filing of a bankruptcy petition, the lender has all the power.  After filing the petition, the debtor gains some power since they can choose whether to keep or “retain” the property or give it up, called “surrender”.  Even if the debtor says they want to keep it; five minutes and an amendment to the petition can change the outcome.  What that means is that the lender gets the property; with all the debt and non-performing loan that goes with it.  They generally do not want that, no matter how nice the house is, since they are inheriting debt; plain and simple.

So much for mandated loan modification

Unfortunately, as has been reported on the national news, the major lenders took billions in federal bailout money; only to go back on their promises to make loan modification easier.  Sometimes they seem to be cutting of their nose to spite…my clients!  The bottom line is this – a bankruptcy can be used as leverage, but never guarantees success in a client keeping their home!

Mark J. Bamberger, Esq., Owner and Attorney at Law

The Mark Bamberger Co., LLC

Offices in Tipp City, West Chester, and Enon