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Bankruptcy and Child Support. Get Straight With Your Lawyer.
Jan L. Warner & Jan Collins

Question: After my divorce and the financial reversals that came with it, I was forced to go into bankruptcy. Part of my problem was the fact that my ex-husband refused to pay child support that was due to me for my children. I spent thousands in lawyer fees and waited for nearly nine months to see that the collection procedures in my state would not be able to help me. So I hired a private child support collection firm I had read about in your column. They really went after my ex and, after a comparatively short time, they sent me a check for more than $10,000 in child support arrears. My bankruptcy lawyer said that we had to report this money even though I told him it belonged to my children. Well, believe it or not, the trustee in bankruptcy is now claiming that my creditors are entitled to this money. I can't believe it. My lawyer says that he doesn't know if I will be required to give up the money or not. How can this happen?

Answer: It may not. More and more courts are not taking the position that since child support belongs to the child, the actions of a custodial parent to collect past due payments are merely enforcement of the child's property rights. Although the custodial parent has certain duties to the child, he or she has broad discretion in how the support funds are spent. Since you don't own the money, we believe a compelling argument can be made to keep these funds from your creditors.

Question: I am so upset with my lawyer that I can't see straight. Although he has a great reputation and is known for getting good results, he has poor interpersonal skills with his clients. In fact, he suggested that I see a psychologist to help me deal with my anger -- and I resent it. Is it customary for lawyers to make suggestions like this?

Answer: No one wants to go to a divorce lawyer, a professional who is sought out during a profoundly important -- and emotional -- time. To be successful in the "divorce business," a lawyer must not only understand the myriad of problems that are involved in each case, but also be able to figure out ways to solve them. To do this, the matrimonial lawyer must know a lot about a lot of things -- from divorce law to real estate to estates to business issues to retirement to taxes to health care. But divorce lawyers must also be able to recognize when a client's emotional state or psychological problems are interfering with the ability to positively participate in the case and to make good decisions.Oftentimes, without direction, clients may unleash all of his or her emotions at the lawyer rather than a mental health professional who is trained to deal with these problems. As we are sure you can understand, it is very difficult to deal with a client who views the lawyer as "the enemy." Your lawyer is on your side and his advice, we believe, is meant to serve your long-term best interests. If you don't believe that, then you should find a lawyer upon whose judgment you feel you can rely.

Question: My lawyer has suggested that I withdraw my claim for child custody for a number of reasons, including the opinion that I can not win my case and will get hurt on other issues. Despite this advice, I feel my children will be better off with me than my wife. How should I resolve this impasse with my lawyer?

Answer: While a lawyer is charged with zealously representing a client's interests, when it comes to the interests of children, there is a different standard. Any lawyer worth his or her salt will not become a "Charlie McCarthy" to the client's Edgar Bergen. If you persist in your demands -- which your lawyer has concluded are misguided -- then your lawyer will probably move to have a disinterested guardian ad litem (a representative for the litigation) appointed for your children. In this way, your children will be independently represented before the court. However, since child custody is such a major issue on which to have a disagreement with your lawyer, you might want to get a second opinion before you make your decision. Discuss this option with your lawyer before the wounds in your relationship begin to fester.

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Suggested Reading:
Separation and Divorce Guidebook
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FS-Be Wary of Credit Issues with Ex
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FS-Becareful of Bargaining Away Alimony As Child Support
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FS-Lawyer Tells Me to Lie & Pension Double Dipped
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FS-On and Off Again Reconciles Can Create Agreement Disasters
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FS-The Dangers of Family Loans
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FS-Transference of Affection & 10 Tips of Divorce
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