Frequently Asked Questions
Family Law FAQ
- What is a "No Fault" divorce?
- What is a "Fault" divorce?
- Do all states offer "Fault" divorce?
Estate Planning FAQ
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 How
do I know if a Will is Valid?
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What happens if a person dies without a
will?
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Do I need an attorney to draft a will?
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What if I only need a “Simple Will”?
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Are there any advantages to having a trust
instead of a will?
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What is a Heritage Trust?
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What is a living Will?
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What is a Durable Power of Attorney?
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I heard you only need to draft one Power of
Attorney, how come you provide two?
Bankruptcy Law FAQ
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What is Chapter 7 bankruptcy?
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How difficult will it be to file chapter 7 under the
new bankruptcy laws?
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Will my creditors stop harassing me?
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Will my spouse be affected?
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Who will know?
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What are the most common reasons for a chapter 7
bankruptcy?
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What don't I keep?
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Can I keep any credit cards?
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When will I be discharged from bankruptcy?
Family Law FAQ
1. What is a "No Fault"
divorce?
"No fault" divorce describes any divorce where the spouse
suing for divorce does not have to prove that the other
spouse did something wrong. All states allow divorces
regardless of who is at "fault."
To get a no fault divorce, one spouse must simply state a
reason recognized by the state. In most states, it's enough
to declare that the couple cannot get along (this reason
goes by such names as "incompatibility," "irreconcilable
differences," or "irremediable breakdown of the marriage").
In nearly a dozen states, however, the couple must live
apart for a period of months or even years in order to
obtain a no fault divorce.
2. What is a "Fault"
divorce?
A fault divorce may be granted when the proper grounds
for divorce are present and at least one spouse files for
it.
The traditional fault grounds are:
- cruelty (inflicting unnecessary emotional or
physical pain) -- this is the most frequently used
ground for divorce
- adultery
- desertion for a specified length of time
- confinement in prison for a set number of years, and
- physical inability to engage in sexual intercourse,
if it was not disclosed before marriage.
Some people don't want to wait out the period of
separation required by their state's law for a no fault
divorce. And in some states, a spouse who proves the other's
fault may receive a greater share of the marital property or
more alimony.
Husbands or wives in the mood for revenge probably could
come up with a multi-count complaint. Some spouses want the
emotional release of proving fault by their mates. But
courts are not a very good forum for such personal issues,
and the accuser is usually less satisfied than he or she
expected to be. The degree to which "fault" affects division
of property, support, and custody will be discussed in the
chapters on those subjects.
3. Do all states offer
"Fault" divorces?
No, 15 states offer no fault divorce only. This means
that a no fault divorce is the only option even when there
has been substantial wrongdoing.
The other states allow a spouse to select either a no
fault divorce or a fault divorce.
Estate Planning FAQ
1. How do I know if a Will
is Valid?
In Florida a valid will requires: 1) A written
instrument; 2) from an author (Testator) who is at least 18
years old; 2) with a sound mind at the time of signature; 3)
and notarized in front of two witnesses in accordance with
Florida Law.
2. What happens if a person
dies without a will?
If a person dies without a will, also known as dying
intestate, then property will be distributed in strict
accordance with Florida’s Probate code. As a result, no
exceptions will exist for those in need.
3. Do I need an attorney to
draft a will?
No. However, according to the Florida Bar's consumer
pamphlet entitled "Do you have a will?" "The drafting of a
will involves making decisions that require professional
judgment which can be obtained only by years of training,
experience, and study. Only the practicing lawyer can avoid
the innumerable pitfalls and advise the course best suited
for each individual situation."
4. What if I only need a
“Simple Will”?
According to the Florida Bar, "There is no such thing as
a simple will."
5. Are there any advantages
to having a trust instead of a will?
It depends. Some people call them advantages, while
others call them differences. A “living trust,” unlike a
will, allows the “Trustor” to distribute property during
their lifetime. Additionally, a living trust unlike a will
allows the “Trustor” to control the distribution. Further,
the “Trustor” can appoint a “trustee” to manage and
distribute property from the trust. The “Trustor” can even
appoint himself this task, and then someone else upon his
death. To learn more, contact the
Noble Law Firm.
6. What is a Heritage
Trust?
A Heritage Trust is designed to protect the family from
ex-spouses. This trust allows you to segregate your child’s
assets from the marital home. As a result, you can prevent
your property from your child’s ex-spouse, ex-spouse’s
children and creditors.
7. What is a living Will?
In the unlikely event, you suffer from a terminal,
end-stage condition, or persistent vegetative state, a
Living Will allows you to determine whether to continue
life-prolonging procedures. The document allows for you to
determine whether to continue with life-prolonging measure
when suffering from a terminal, end-stage condition, or
persistent vegetative state.
8.What is a Durable Power
of Attorney?
A durable power of Attorney allows for a person to
designate an individual, known as the attorney-in-fact to
make decisions on their behalf. By executing a Durable Power
of Attorney, the Attorney-in-fact is acting as if he were
literally that person. The Attorney-in-fact has a fiduciary
duty to this individual, and therefore subjects himself to
liability if acting improperly.
9. I heard you only need to
draft one Power of Attorney, how come you provide two?
Florida Law allows a person to execute one Durable Power
of Attorney for both Health Care and Property. However, some
people may not feel comfortable making health care
decisions. For this reason and to avoid confusion among
doctors and bankers, The Noble Law Firm prepares at no
additional cost, a Durable Power of Attorney for the Health
Care Surrogate and Durable Power of Attorney for property.
Bankruptcy Law FAQ
1. What is Chapter 7 bankruptcy?
Chapter 7 bankruptcy, sometimes call a straight
bankruptcy is a liquidation proceeding. The debtor turns
over all non-exempt property to the bankruptcy trustee who
then converts it to cash for distribution to the creditors.
The debtor receives a discharge of all dischargeable debts
usually within four months. In the vast majority of cases
the debtor has no assets that he would lose so Chapter 7
will give that person a relatively quick "fresh start".
One of the main purposes of Bankruptcy Law is to give a
person, who is hopelessly burdened with debt, a fresh start
by wiping out his or her debts.
2. How difficult will it be to file chapter
7 under the new bankruptcy laws?
It's true that there are more hoops to jump through under
the new laws and it's true that the bankruptcy means test
will result in some people having to file chapter 13 instead
of Chapter 7. However, for the vast majority of filers
Chapter 7 is still available with very little extra effort!
3. Will my creditors stop harassing me?
Yes, they will! By law, all actions against a debtor must
cease once the documents are filed. Creditors cannot
initiate or continue any lawsuits, wage garnishments, or
even telephone calls demanding payments. Secured creditors
such as banks holding, for example, a lien on a car, will
get the stay lifted if you cannot make payments.
4. Will my spouse be affected?
Your wife or husband will not be affected by your
bankruptcy if they are not responsible (did not sign an
agreement or contract) for any of your debt. If they have a
supplemental credit card they are probably responsible for
that debt. However, In community property states, either
spouse can contract for a debt without the other spouse's
signature on anything, and still obligate the marital
community. There are a few exceptions to that rule, such as
the purchase or sale of real estate; those few exceptions do
require both spouse's signatures on contracts. But the day
to day debts, such as credit cards, do NOT require both
spouses to have signed.
Community property states are: Arizona, California,
Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and
Wisconsin.
5. Who will know?
Bankruptcy filings are public records. However, under
normal circumstances, no one will know you went bankrupt.
The Credit Bureaus will record your bankruptcy and it will
remain on your credit record for 10 years.
6. What are the most common reasons for a
chapter 7 bankruptcy?
The most common reasons for filing bankruptcy are:
- Unemployment:
- Large medical expenses;
- Seriously
overextended credit;
- Marital problems,
- Other large
unexpected expenses.
A Harvard Study reported that half of US bankruptcies
were caused by medical Bills (MSNBC). The study was
published online in February of 2005 by Health Affairs. The
Harvard study concluded that illness and medical bills
caused half (50.4 percent) of the 1,458,000 personal
bankruptcies in 2001. The study estimates that medical
bankruptcies affect about 2 million Americans annually —
counting debtors and their dependents, including about
700,000 children.
7. What don't I keep?
In a bankruptcy, assets in excess of your allowed
personal exemption, or non exempt assets such as, real
estate, automobiles and boats will be liquidated by the
trustee.
8. Can I keep any credit cards?
Whether a debtor keeps credit cards after filing
bankruptcy is up to the credit card company. If you are
discharging a credit card they will cancel the card unless
you reaffirm the debt. Even if you have a zero balance the
credit card company might cancel the card.
9. When will I be discharged from
bankruptcy?
One of the major purposes of bankruptcy legislation is to
afford the opportunity to a person hopelessly burdened with
debt to erase his or her debt and thereby get a fresh
financial start. A bankrupt's debt is erased when he or she
is discharged.
The debtor is discharged 3 - 5 months after bankruptcy is
filed. At that time all debts (with some exceptions) are
written off.
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