Attorney liability in bankruptcy / Corinne Cooper, editor ; Catherine E. Vance, contributing editor.
2006
KF325 .A95 06882
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Details
Title
Attorney liability in bankruptcy / Corinne Cooper, editor ; Catherine E. Vance, contributing editor.
Uniform Title
American Bar Association archive publications.
Published
Chicago : American Bar Association, [2006]
Copyright
©2006
Call Number
KF325 .A95 06882
ISBN
1590315820
9781590315828
9781590315828
Description
xx, 348 pages : illustrations, forms ; 26 cm + 1 CD-ROM (4 3/4 in.)
System Control No.
(OCoLC)319435178
Bibliography, etc. Note
Includes bibliographical references and index.
Reproduction
Microfiche. Buffalo, N.Y. : W.S. Hein, 2009? 4 microfiches : negative. (Hein's ABA Archive Microfiche Collection).
System Details Note
System requirements for accompanying disc: IBM PC or compatible or Macintosh; Adobe Reader 4.0 or later; CD-ROM drive.
Record Appears in
Sub-location
Cabinet 13-14
Added Author
Added Corporate Author
Table of Contents
About the Author
Acknowledgments
Introduction
Chapter 1
Starting the Case
1
1.01
The Challenge of Locating Military Personnel
1
Strategies and "Detective Work"
1
Worldwide Military Locators
3
1.02
Facilitating Child Support Casework
8
1.03
Serving Military Personnel
10
Service by Mail
12
Service on Base
14
Substituted Service
18
1.04
Service Abroad
19
Hague Service-An Overview
22
Service of Process in Germany on Servicemembers and Dependents
24
Service of Process in Italy on Servicemembers and Dependents
29
Service of Process in the United Kingdom on Servicemembers and Dependents
29
Service of Process in Japan on Servicemembers and Dependents
31
Service of Process in South Korea on Servicemembers and Dependents
33
Service of Process in a Combat Zone or Elsewhere
33
1.05
Client Questions
33
1.06
Translations
33
1.07
Obtaining Evidence Abroad
34
Appendix 1-A
Air Force Information as to Service on Base and Abroad: Talking Paper on Service of Process on Air Force Installations
37
Appendix 1-B
State Department Advisory on Service of Legal Documents Abroad
43
Appendix 1-C
The Hague Service Convention (in Germany and Elsewhere)
55
Appendix 1-D
State Department Advisory on Service of Process in Germany
56
Appendix 1-E
State Department Advisory on Service of Process in Italy
63
Appendix 1-F
State Department Advisory on Service of Process in the United Kingdom
70
Appendix 1-G
State Department Advisory on Service of Process in Japan
76
Appendix 1-H
State Department Advisory on Service of Process in South Korea
86
Appendix 1-I
Explaining Service of Process to Your Client
90
Chapter 2
The Servicemembers Civil Relief Act
93
2.01
Introduction
93
2.02
Stay of Proceedings
94
Verifying Military Status
95
Deciding a Stay Request
96
A Gap in the SCRA
98
Length of Stay and Appointed Counsel
99
2.03
Default Judgments
101
Requirements for the Moving Party
104
Execution of Judgments
105
2.04
Opposing a Stay Request
105
2.05
The Child Support Case
108
2.06
Inquiring into "Material Effect"
110
2.07
The Danger of Conclusory Statements
112
2.08
Contested Claims and Stages
113
2.09
Discovery and the Stay Request
114
2.10
Guidelines for the Judge
117
2.11
Good Faith
121
2.12
Prevention of Problems
121
2.13
Other Provisions of the SCRA
122
2.14
Internet Resources
124
2.15
Conclusion
125
Appendix 2-A
Sample Motion for Stay of Proceedings under the Servicemembers Civil Relief Act (SCRA)
127
Appendix 2-B
SCRA Flow Chart on Stay of Proceedings (No Appearance by Servicemember)
130
Appendix 2-C
SCRA Flow Chart for "Additional Stay"
131
Chapter 3
Custody and Visitation
133
3.01
Custody and the SCRA
133
Military Custodian Entitled to a Stay of Proceedings
133
Noncustodial Servicemember Entitled to Stay
136
Conduct of the Nonmilitary Parent
138
Conduct of the Military Parent
139
3.02
Mobilization and the Military Parent
141
Mobilization Cases
143
Temporary Custody Trumps SCRA
144
Temporary Custody Trumps SCRA and Family Care Plan
145
Custody through Power of Attorney
148
Is There an Emergency?
149
3.03
Mobilization and Deployment-Clauses to Consider
150
3.04
Jurisdictional Concerns
151
3.05
Additional Jurisdictional Considerations
153
3.06
Testimony and Evidence in Interstate Cases
155
Inconvenient Forum
155
3.07
Custody for the Servicemember
156
Custody for the Servicemember and Deployment
160
3.08
Military Visitation
162
Planning for Long-Distance Visitation
163
Enforcement of Visitation Rights and Access
164
Delegation of Visitation Rights
165
3.09
Family Care Plans
166
3.10
Obtaining Health Records
170
3.11
Obtaining Educational Records
175
3.12
Early Return/Advance Return of Dependents
176
Return of Children from Overseas: Regulations
177
The Army Regulation
178
Other Parental Kidnapping Remedies
181
Foreign and Domestic Jurisdiction
182
The Hague Convention and International Abduction
184
Consent to Removal
189
3.13
Instituting Suit for Custody Overseas
189
Foreign Country Custody Orders and American Courts
190
Appendix 3-A
Department of Defense Dependents Schools DODDS 22
193
Appendix 3-B
Department of Defense Dependents Schools DODDS 26
198
Chapter 4
Family Support
201
4.01
Introduction
201
4.02
Paternity Issues
204
Paternity and Estoppel
204
Tissue Tests
206
Trial and Proof
207
Welfare Reform Act
208
Military Paternity Regulations
209
4.03
Family Support
210
Child Support: Monetary Amount
211
Military Guidelines When There Is No Order
211
Air Force Rules
212
Marine Corps Rules
213
Navy Rules
214
Coast Guard Rules
215
Army Rules-Overview
215
4.04
Figuring Support-BAQ, VHA, and Now ... BAH!
217
4.05
Court Orders and Interim Support
218
4.06
Remedies and Methods of Payment
221
4.07
The Nonsupport Complaint Letter: A Low-Cost Remedy
221
4.08
Mobilization and Support
222
4.09
Expediting the Hearing for the Servicemember
224
4.10
Calculating Child Support
227
The Value of the LES
228
What Is Income?
229
Converting Nontaxable to Taxable Income
233
Guard and Reserve Pay
236
Medical Expenses
236
4.11
Overview of Military Medical Benefits
236
Benefits for Family Members
237
Other TRICARE Benefits
239
Transitional Health Care
240
Children's Medical Coverage
242
Other Health Care Coverage
243
Health Care Definitions
244
Deadlines and Logistics
247
Allocation of Child Support
249
4.12
Life Insurance
250
4.13
Variances and Visitation
254
4.14
Long-Distance Visitation
255
4.15
Military Child Support and UIFSA
257
4.16
Garnishment Overview
259
Garnishment Procedures
260
Requests for Payroll Information of Servicemembers
263
4.17
Inexpensive Enforcement: The Involuntary Allotment
264
4.18
Support Enforcement against Military Retirees
266
4.19
Alimony Overview
267
Basic Facts and Law
267
An Alimony Template
268
Advising about Alimony
269
How Much Alimony?
270
Spousal Medical Expenses and Coverage
271
When Does Alimony End?
273
Waiver of Alimony
274
Conditional Payment of Alimony
274
How to Reserve Alimony
274
4.20
Spousal Support-Avoiding Nonsupport Complaint Letters
275
Appendix 4-A
Proving Paternity by Presumption and Preclusion
277
Appendix 4-B
Army Support Flow Chart, Single Soldier
278
Appendix 4-C
Army Support Flow Chart, Married Soldier
279
Appendix 4-D
Army Client Handout on Nonsupport
280
Appendix 4-E
Sample Army Nonsupport Letter
283
Appendix 4-F
Reading a Leave-and-Earnings Statement
284
Appendix 4-G
Sample Leave-and-Earnings Statements
292
Appendix 4-H
Military Child Support and UIFSA Outline
299
Appendix 4-I
Child Support Enforcement Abroad
300
Appendix 4-J
U.S. Department of Health and Human Services Administration for Children and Families-Office of Child Support Enforcement Information Memorandum IM-98-03
301
Appendix 4-K
Application for Former Spouse Payments from Retired Pay (DD Form 2293)
303
Appendix 4-L
Sample Involuntary Allotment Letter
305
Chapter 5
Domestic Violence
307
5.01
Introduction
307
5.02
Civil and Criminal Remedies under State Law
308
5.03
Military Remedies
312
The Family Advocacy Program
313
Command Responses
316
5.04
Firearm Possession Problems
318
5.05
Transitional Compensation
324
5.06
Military Pension Division
330
5.07
Conclusion
331
Chapter 6
Divorce
333
6.01
Introduction
333
6.02
What Is Domicile?
333
Domicile Protection for Servicemembers
335
Changing One's Domicile
336
The Importance of Domicile in Divorce Cases
339
Faux Residence Statutes
340
"Tax Texans"
343
6.03
Residence
344
6.04
Divorce, Domicile, and the Nonmilitary Spouse
346
6.05
Military Entitlements and Divorce
352
6.06
Defense or Delay
352
6.07
Domicile and Discovery
354
6.08
Divorce Procedures and the Servicemember
359
6.09
Peremptory Settings
362
6.10
Foreign Divorces
364
Appendix 6-A
State of Legal Residence Certificate (DD Form 2058)
365
Appendix 6-B
Domicile Checklist for Servicemembers and Spouses
366
Appendix 6-C
Questions and Answers about Domicile
367
Appendix 6-D
Former Spouse Benefits Chart
371
Appendix 6-E
Silent Partner, Counseling on Foreign Divorce
374
Appendix 6-F
U.S. State Department Advisory on Divorce Overseas
375
Appendix 6-G
Foreign Divorce and the Military: Traversing the "You're No Longer Mine" Field
380
Appendix 6-H
Sample Brief, Invalidity of Purported Mexican Divorce
381
Chapter 7
Family Law Tax Issues
387
7.01
Military Tax Issues, Resources, and the Servicemember
387
7.02
Tax-Exempt Income and the Servicemember
388
7.03
The Military Family Tax Relief Act of 2003
391
7.04
Back Taxes
394
7.05
Transfer of Dependency Exemptions and Child Tax Credits
396
7.06
Military Tax Resources
399
Appendix 7-A
Information Paper: Qualifying for Combat Zone Tax Benefits
401
Appendix 7-B
Information Paper: Tax Treatment of Capital Gain on Sale of Home
404
Appendix 7-C
Judge Advocate General Legal Center and School's Military Tax Outline
406
Appendix 7-D
IRS Publication 3 Armed Forces' Tax Guide
407
Appendix 7-E
Need-to-Know Divorce Tax Law for Legal Assistance Officers
408
Appendix 7-F
Judge Advocate General Legal Center and School's Tax Aspects of Marriage and Divorce Outline
409
Chapter 8
Pension and Property Division
411
8.01
Introduction
411
8.02
Military Retirement Benefits
411
Calculation of Benefits
413
Fifty-Percent Formula
414
High-3 Formula
414
REDUX Formula
414
8.03
Guard and Reserve Retirement
415
8.04
The Uniformed Services Former Spouses' Protection Act
418
8.05
Roadblocks to Stop Division: Jurisdiction over the Pension
421
Domicile as Jurisdiction
422
Domicile as a Defense
424
The Nonmilitary Spouse and the Domicile Dilemma
426
Challenging a Domicile Claim
427
The Consent Conundrum
427
State Law Differences
430
"Consent" Cases
430
The Danger of a Default Judgment
433
8.06
Other Roadblocks
434
Constitutionality
434
Retroactivity
434
Timeliness
435
Waiver
436
Statutory Bars to Pension Division
436
8.07
Forum Shopping
438
8.08
Type of Pension
439
8.09
Military Disability Retired Pay
440
8.10
VA Disability Benefits
441
Concurrent Receipt
443
Dealing with VA Waivers-State Court Reponses
444
Drafting to Defend the Nonmilitary Spouse
446
Remedies for Post-Divorce VA Waivers
450
8.11
Cautionary Advice for the Parties
454
8.12
How to Divide the Military Pension
455
Deferred Division Overview
456
Calculating the Marital Share
457
Choosing a Method of Pension Payment
458
Drafting a Pension Division Clause: Traps and Tips
460
Deferred Division Examples
464
Present Value Offset
465
Reserve and National Guard Pensions
468
Computations-An Example
468
8.13
Recall to Active Duty
471
8.14
Dividing Disposable Retired Pay
473
8.15
The Survivor Benefit Plan
474
Benefits and Disadvantages of SBP
476
DIC Offset
477
Election Options
480
Dealing with Deadlines
480
Termination of SBP Coverage
482
Changing SBP Coverage
482
Remedies for the Wronged Former Spouse
483
Strategies for the Servicemember
485
Who Pays the Premium?
487
Strategies for the Spouse
489
Life Insurance Issues
489
Other SBP Issues
490
8.16
Early Separation from the Military: What Happens to Retirement Benefits?
491
Early-Out Options: VSI and SSB
491
Fifteen-Year Retirement
494
Civil Service Rollovers
495
8.17
Retroactive Payments
500
8.18
Direct Pension Payments from DFAS
502
"Who Ya Gonna Call?"
503
Use the Right Document
503
Jurisdiction
505
The Ten-Year Rule
505
Wording Issues
506
Don't Ask for "Too Much"
506
The Servicemembers Civil Relief Act
506
DFAS Response
511
The DFAS Checklist
512
8.19
Pension Division and Domestic Abuse
516
8.20
The Thrift Savings Plan
516
Dividing the TSP
517
8.21
Other Marital Property-CSB/REDUX
519
8.22
Other Marital Property-Accrued Leave
521
8.23
Valuing the Servicemember's Military Medical Benefits
522
8.24
Commissary and Exchange Privileges
522
8.25
ID Cards
523
8.26
The "Lost" Military Pension and How to Retrieve It
523
8.27
Over the Horizon
530
8.28
Know Your Resources
530
Appendix 8-A
Army Reserve Retirement Points Statement
533
Appendix 8-B
Uniformed Services Former Spouses' Protection Act, 10 U.S.C. [section] 1408
534
Appendix 8-C
Department of Defense Financial Management Regulations
540
Appendix 8-D
1995 Proposed Revisions to Regulations on Military Pension Division
553
Appendix 8-E
Dividing Military Retired Pay
558
Appendix 8-F
Sample Motion and Order for Military Pay Records
571
Appendix 8-G
State Court Treatment of Military and Veteran's Disability Benefits: A 2004 Update
573
Appendix 8-H
Sample Present Value Opinion Letter for Army Reserve Pension
574
Appendix 8-I
Reserve Component Survivor Benefit Plan (RCSBP) Coverage and Costs
575
Appendix 8-J
Application Form for Correction of Military Records
579
Appendix 8-K
Sample Request for Change of SBP Beneficiary in Application for Correction of Military Records
581
Appendix 8-L
Illustration of Calculations to Shift Cost of SBP to Non-Military Spouse and to Reduce SBP Benefit to Lifetime Pension Share
582
Appendix 8-M
Table for SBP Shifting Premium to Spouse or Former Spouse
584
Appendix 8-N
Table for SBP Shifting Premium to Servicemember
585
Appendix 8-O
Sample Retiree Account Statement
586
Appendix 8-P
Thrift Savings Plan Booklet Excerpt on Court Orders
587
Appendix 8-Q
Sample Military Pension Division Order
595
Glossary of Terms, Abbreviations, and Acronyms
605
Table of Cases
609
Index
621