Pasrt Due Reimbursements for Children

[LadyInTheRed]

It was denied without prejudice. Yes, I had a family law attorney - I'll withhold my comments regarding the effectiveness of their representation. So, how is this listed on a bankruptcy petition?

You report the receivable as an asset. It doesn't matter that he claims he doesn't owe it to you. If you believe he owes it, it's an asset that gets listed on your BK petition. If it's not an exempt asset as the attorney you consulted with seems to believe, it's up to the trustee whether to try to collect from your ex. If the trustee doesn't try to collect from your ex and abandons the asset, you may want to find a new family law attorney to file a new petition in family court.

[howdidithappen]

What if I choose not to pursue it? A different family law lawyer told me it would just go to my creditors so it isn't worth pursuing (Rather foolish to pay another lawyer to get money for my creditors. Another suggested I wait until the bankruptcy is closed so it's up to me whether or not to pursue it. What would the trustee do as far as pursuing it against my ex? I've gotten differing opinions as to whether or not it's exempt. Had I got that money owed to me, I probably wouldn't be in the mess I'm in today... The expenses have all been paid by me. Ex is suppose to reimburse me a percentage in accordance with our Property Settlement Agreement. The bills were submitted to the Court with proofs of my payments. Ex provided no proof - simply said he paid them and owed me no money. The expenses are medical, educational and summer camp. If I report it, must I then go after it? What can of worms is opened when the ex gets involved? It's my understanding that these reimbursements belong to the children - not me.

[LadyInTheRed]

The trustee can't force you to pursue the claim. If the trustee wants it, the trustee has to pursue it.

I suggest you proceed with your bankruptcy without worrying about what will happen to the claim. You say his lack of payment helped push you to BK. So, if the trustee collects from your ex and uses it to pay creditors, so be it. If he abandons the claim, you can decide whether to pursue it later.

[enuffznuff]

If this matter has already been adjudicated once by the court; ie. you have BEEN TO COURT on THIS issue, where you said 30,000 was owed and he said it was not, and the court DENIED your claim, then the money is NOT currently owed to you. The fact that it was decided without prejudice simply means that you are able to refile the claim in the future, but it doesn't leave any 'pending' issue on the table. The matter was adjudicated and your claim was denied. Your ex won. He doesn't currently 'owe' you the money. The decision was without prejudice, meaning that you are able (I would assume, if you amass better evidence) to refile your claim at a later date. But the matter is not undecided if your representation that the issue has already been filed and denied is correct. You are not, currently, legally owed the money.

[howdidithappen]

Well my lawyers have listed it on my petition. Now what happens - the trustee goes after it and get nothing meaning I get nothing (is that correct - I get nothing if he gets nothing? Will he actively pursue it? How will I be informed as to what action the trustee is taking?) OR the trustee leaves it alone and I go back to court later (which I will probably do soon in Family Court as there are other pending issues that need to be resolved rather quickly). I agree with you - unless I go back to Court I am not owed the money. (Remember I mentioned the effectiveness of my family law counsel.) It looks like the door's been opened now.

[LadyInTheRed]

If this matter has already been adjudicated once by the court; ie. you have BEEN TO COURT on THIS issue, where you said 30,000 was owed and he said it was not, and the court DENIED your claim, then the money is NOT currently owed to you. The fact that it was decided without prejudice simply means that you are able to refile the claim in the future, but it doesn't leave any 'pending' issue on the table. The matter was adjudicated and your claim was denied. Your ex won. He doesn't currently 'owe' you the money. The decision was without prejudice, meaning that you are able (I would assume, if you amass better evidence) to refile your claim at a later date. But the matter is not undecided if your representation that the issue has already been filed and denied is correct. You are not, currently, legally owed the money.

As I understand it, when a claim is dismissed or denied without prejudice, there was no actual adjudication as to the merits of the claim. That is why the court leaves it open for refiling. If the ruling was based on the merits of the claim it would be with prejudice and the only recourse for a party who does not agree would be to appeal.

[justbroke]

lady... impressive. I thought I was reading a law journal for a minute!

[enuffznuff]

It may be partly jurisdictional, I agree that without prejudice leaves the matter open for refiling. Here dismissal without prejudice would mean you have not demonstrated you have sufficient standing or evidence to bring the action. This would happen prior to a hearing on the matter itself. The motion would be dismissed without prejudice prior to testimony and evidence, or prior to completion of such. The opposing side would move for dismissal, and if granted your claim would not be weighed by the judge.
Denied without prejudice would mean that after having a hearing and submitting evidence, based on your evidence the motion you filed is denied, but without prejudice meaning that you are not barred from bringing the same action again.
As it stands now, her motion for reimbursement was denied. She is not barred from pursuing the claim further, but he does not currently 'owe' her the money, would be my understanding of the situation.

[LadyInTheRed]

lady... impressive. I thought I was reading a law journal for a minute!

LOL! I guess that's the result of working with lawyers for about 20 years.

[LadyInTheRed]

As it stands now, her motion for reimbursement was denied. She is not barred from pursuing the claim further, but he does not currently 'owe' her the money, would be my understanding of the situation.

I'm with you until you get here. My analysis was incomplete and focused more on a dismissal than denial. But, if she can still pursue the claim, he may still owe her money. Just because she hasn't convinced the court yet that he owes her the money, doesn't mean he doesn't owe her the money. It just means she doesn't have a judgment she can use to collect. She still has a claim that should be reported as an asset.

[justbroke]

I agree with lady. A dismissal is an entirely different thing, technically, then a conclusion and disposition (although a dismissal is a disposition). What I mean is, that a dismissal means that there is not enough to continue prosecuting the motion/complaint. It can come about because a party to the action fails to respond, a jurisdictional issue, temporal issue, or one of the party moves the court to dismiss because there wasn't any valid cause of action. This is different than a ruling on the matter.

Hypertechnical, yes, but bankruptcy is a hypertechnical process. Actually, contest matters (motions) are usually denied or granted. Complaints are usually dismissed or a judgment is entered. A dismissal or denial could be a final order (with prejudice) or could grant the movant leave for resubmission (without prejudice).

It's like they say in criminal court. A hung jury doesn't mean that they are innocent or guilty. LOL. It's just a failure to render a verdict (judgment).

[howdidithappen]

Believe me, I'm owed the money. I didn't it get due to lawyer's screw up. Ex testified under oath that he owed me no money - claimed he always reimbursed me (didn't submit proof and of course, trashed me as much as he could that I was just money hungry...). What steps does the trustee take to go after the money (if the trustee decides to do so)? BTW my lawyers have asked for an"estimate" of what I'm owed - why is that?

[LadyInTheRed]

Believe me, I'm owed the money. I didn't it get due to lawyer's screw up. Ex testified under oath that he owed me no money - claimed he always reimbursed me (didn't submit proof and of course, trashed me as much as he could that I was just money hungry...). What steps does the trustee take to go after the money (if the trustee decides to do so)?

Pretty much the same steps you would take.

BTW my lawyers have asked for an"estimate" of what I'm owed - why is that?

So he can list it on your BK petition.

[howdidithappen]

Will the trustee file a Motion in Court for the $30K? Also if it is determined to be child support - will the trustee have the right to distribute it? (I'm guessing if the trustee feels it is past due child support, he won't even pursue it.)

[LadyInTheRed]

Will the trustee file a Motion in Court for the $30K? Also if it is determined to be child support - will the trustee have the right to distribute it? (I'm guessing if the trustee feels it is past due child support, he won't even pursue it.)

Nobody can say for sure what the trustee will do. An attorney with experience dealing with the local trustee may be able to provide some insight on what is likely. But, you won't know for sure until after you file. As already stated, whether the trustee can take past due child support depends on your state's laws. It doesn't look like New Jersey Bankruptcy Exemptions would allow you to exempt it. If you elect to use Federal Exemptions, child support is exempt if needed for support. I don't know if you could successfuly claim amounts due to you in the past is needed for your support since you have managed to survive so far.

After typing that, I looked back at your posts and see that you filed Chap 7 on Feb 4th. That fact would have been helpful in this thread. All the guessing about what the trustee may do seems pretty pointless at this point. It shouldn't be long before you know what the trustee will do. You said "AN attorney" advised you that if you collect from your ex, the money will go to the trustee. It sounds like it is YOUR attorney who advised you of that. He is correct that until the trustee abandons the claim (if he does), you will have to turn over to the trustee anything that you collect. (I'm assuming the claim is not exempt or your attorney's advice would be different). Take your attorneys advice and don't bother pursuing the claim unless and until the trustee abandons it.