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Child support when child's address is unknown
Child support delinquency and visitation rights are not linked
No such thing as common-law marriage in California
Confidential marriages are available to avoid embarrassment
Move away issues in child custody
Grounds for annulment
Bankruptcy consultations available
Chapter 7 bankruptcies halt creditor harassment
Student loans are not dischargeable in bankruptcy
Stepparent adoption as a means to affirm legal custody
Credit card interest could drive you to bankruptcy
New bankruptcy law on the horizon
Divorce and long-term marriages
Name change petitions
Employment litigation
Bankruptcy payment plans
Misplaced bills and records

Question:

Dear Al:

   
             My husband was paying child support until he lost his job, he was getting the child support garnished out of his paycheck. The mother of his child has full custody of the child. Sometime in December last year, the mother and child relocated somewhere on the east coast, my husband found a job and is now ready to continue with his child support payments. The thing is, the mother did not notify my husband of her contact info.

  1. How do we go about continuing his child support payments?

  2. If we chose not to pay child support since the mother did not notify us of where we should send the money, does my husband get penalized for it (for instance, take his income tax return).

Sincerely,
New Mate from Northridge

Response:

Dear New Mate:

Best thing to do would be to find the mother of his children; I'm willing to bet she'll take the money, gladly. If she had a lawyer, start looking for her there.

Send a letter to the last known address, with request for a forwarding address. Try on-line databases for a current phone number. If all that fails, and years down the road she tries to enforce the back payment, she probably could win all the back support plus 10% interest per year on all unpaid support. In very limited circumstances, under the legal authority of a case called Marriage of Damico, your husband might be able to use what's called an "estoppel" defense against the mother's enforcement action years from now. However, he would have to prove that the mother actively concealed the whereabouts of the child, and that defense would only apply to the period when the child's whereabouts were concealed. It would be up to the whim of a judge whether the defense would prevail.

If your husband needs more help with these problems, call (858) 793-7636 to set up a FREE consultation, at which I will explain the costs and benefits of retaining me to help.

           Sincerely,
          
Al

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Question:

Dear Al:

   
             My wife and I have been separated for 16 weeks now.  During this time my employer down-sized our division and I lost my job.  I no longer can afford to pay the child support order that my wife obtained right after we separated.  In fact I have only unemployment insurance.  My wife is telling me I cannot see the children, because I owe her two months’ worth of child support at $1,600.00 a month.  There is no way I can come up with $3,200.00 to see my children. I have not seen the children now for three weeks.  What can I do?

Sincerely,
Lost-a-job, La Jolla, CA

Response:

Dear Lost-a-job:

You lost your employment, you did not lose your parental rights.   Under California law, being current on child support IS NOT a requirement for visitation.  Your wife has no right to prevent you from visiting your children.  The two issues: child support and visitation are unlinked, under the law.  It’s against the law for your wife to prevent contact with your children, if you have any court-ordered custody or visitation.  It’s also against the law to fail to pay court-ordered support.  Neither of you can make one issue contingent on the other.  You cannot legally withhold support, because she withholds child contact; and she can’t withhold contact if you withhold support.

If you don’t already have a visitation order, you should make sure that you obtain one from the court.  Right now hiring an attorney is probably not the easiest thing for you to do, because of your precarious financial condition.  However, you can pursue this on your own as a “pro per,” that is as your own attorney.  The family court provides family law facilitators who can help you with the paperwork for an order to show cause for visitation at which you can represent yourself.  If you are really short on funds, and can demonstrate that fact effectively to the court, you may even be able to get a waiver of court fees.

That said, your wife will need to be educated regarding your rights of visitation.  Once you have a visitation order, that visitation can be enforced with the assistance of the police if necessary.  Of course, it is always better for the children, if you can peacefully convince her to respect your parental rights rather than bringing the cops with you to pick up the kids for a visit.

Also you will need to do something to get the child support modified, because you obviously cannot now pay $1,600 per month.  For that you also will need to go to court, and seek a child-support modification.

I am sorry that things are so unhappy for you at the moment.  Perhaps when you get these legal issues taken care of, you also will have some better fortune in the employment arena.

Good Luck,
Al

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Question:

Dear Al:

My boyfriend and I have lived together for 13 years, mostly in Philadelphia.  We just moved to California a year ago.  (I am a single mom, and my daughter from a previous relationship is 15 years old.)  Now,  I am disabled.  The benefits department at my boyfriend’s employer says they cannot extend medical benefits to unmarried partners, no matter how long the couple has been together.  I need those medical benefits badly.  Presently we are not planning to marry, but I am told the benefits department would give me health insurance, if I were married.  The benefits clerk said a common-law marriage would do.  What does it take to have a common-law marriage in California?

Sincerely,
Cohabitant from Del Cerro

Response:

Dear Cohabitant:

It takes an act of God.  The clock needs to be turned back more than  a century.  Formerly,  most states recognized common-law marriages, on the theory that a trip to the county seat for a marriage license was real difficult in horse-and-buggy days.  However, California has not recognized any new common-law marriages since about 1895.  Word about this change must be spreading real slowly, because I often hear this question.   No length of cohabitation in California--with or without children or step-children--is the basis for a legally sanctioned marriage.   This question frequently comes up when an unmarried partner dies without naming the surviving partner in a will or on insurance policies, and the financial result for surviving California cohabitants can be very sad.

Nationally, the trend is clearly against common-law marriage, too.  For example, New York stopped allowing any more common-law marriages after 1933, New Jersey abolished this form of marriage in 1939, even the last frontier state--Alaska--pulled the cork on common-law marriage in 1964.  As of 1998, only eleven states and the District of Columbia still permitted any new common-law marriages.

Until recently, Pennsylvania was one of the minority of states which still allowed common-law marriage, and California recognizes marriages which are validated by any other jurisdiction.   However, the climate for common law marriage had been lukewarm for some time in Pennsylvania.  In a 1998 case, the Pennsylvania Supreme Court grudgingly decided, “Common law marriages are tolerated, but not encouraged.   While we do not today abolish common law marriages in Pennsylvania, we reaffirm that claims for this type of marriage are disfavored.” There was no specific time requirement for Pennsylvania common-law marriages.   To make the common-law marriage valid in Pennsylvania you had to prove  you and your spouse once said to each other that you are marrying and that you later cohabited. Since then the other shoe has dropped; I have read that Pennsylvania abandoned common-law marriage, too. Maybe you can convince the benefits department folks you were married under Pennsylvania common law, before the law changed.

If all else fails, do you and your boyfriend want to marry in California?  That’s a far simpler way to get your medical benefits, and you might also get health insurance for your daughter.

Take care,
Al


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Question:

Dear Al:

For the past eleven years my boyfriend and I have lived together.  All our relatives, friends and neighbors think that we married years ago.  Now we want to get, married but we don’t want the fuss of a big wedding or the embarrassment of telling everyone that we have been “living together in delicious sin” all these years.  If we get married, will it become a public record?  Will everyone with a web browser be able to find out?  Please don’t send us a toaster.

Sincerely,
Shackup from Ramona

Response:

Dear Shackup:

You are in luck.  There is a simple inexpensive solution to your problem.   What you have to do is purchase a marriage license at the county clerk’s office and have the marriage solemnized.   But specify that you want a “confidential marriage.” 

You probably qualify for the marriage license.  Very likely you meet the age requirement, and won’t need parental permission to marry under the age of eighteen.  (I’m guessing you are over eighteen, because you have lived together eleven years and probably didn’t begin cohabitation before the age of seven.)   Since 1995 no health certificate or blood test has been required for a marriage license.  Thus, if you are not of “unsound mind” the license shouldn’t slow you down much.   Most important, you can obtain what is called a “confidential marriage” license, which isn’t a public record.

 “Solemnize” is just legalese in the California Family Code for “have a wedding ceremony,” but the ceremony doesn’t have to be any big deal, and there aren’t any particular magic words required by law.   Lots of people can “solemnize” the marriage:  rabbis, priests, judges (retired or active), magistrates, legislators and certain “officials of non-profit religious institutions” who are licensed by the county.  So the ceremony can be kept small and discreet, unless you decide to put your name on the bridal registry at a major department store.

Sincerely,
Al

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Question:

Dear Al:

When I married I was living in Cincinnati, Ohio, and I moved to San Diego to start a new life with my husband.  However, things have gone sour, and we are now getting a divorce.  We have two children.  I would like to move back to Cincinnati.  He said he can prevent me.  Is this true?

Sincerely,
Homesick for Cincinnati

Response:

Dear Homesick:

The answer is YES and NO.  These are the most troubling cases that family law attorneys and the family court ever consider.  The court and the attorneys call this issue a “move away” case.

Whether you can move with the children depends on a number of factors.  Of course, you have the absolute freedom to live anywhere you wish in America and any foreign country that will grant you a visa.  It seems from what you said that you currently have “physical” custody of the children.  However, whether you will be able to move and take the children with you depends on MANY factors.

In general, the law was liberalized for the person who wanted to move away by a state supreme court case in 1996 known as In re Marriage of Burgess.  Unfortunately, the Burgess case did not clear up matters as much as parents, counselors, attorneys and judges had hoped it would; and maybe it’s too much to expect our state supreme court to have the wisdom of a King Solomon.  Anyway, under the Burgess rules, you can move if your reason for the move away is not a bad-faith reason, such as an intent to edge the remaining spouse out of the children’s lives.  At the very least you need to give your ex-spouse sufficient notice of your intent to move.  The minimum notice for this usually is at least 60 days, under most court orders.  Then your spouse is entitled to challenge the move in court.  The whole process can be very expensive and emotionally draining for both parties.  (I encourage people to save money by representing themselves on routine legal matters, but unfortunately, this is one area of law where representing yourself is real risky.  You will probably need a good lawyer with lots of experience in move-away cases.)  Judges hate these cases, because they can be so heart breaking.  It is hard for the judges to make a decision, but in general they consider such factors as: how much child-custody  each of you has, how much the children have bonded with each of the parents, who is the primary caretaker, and whether or not it will be detrimental to the children to be separated from one of the parents.

Some psychologists say that separated parents ought to do whatever they have to do with their personal lives and careers so they can live in the same community as each other while their children are growing up.  It usually is detrimental for a child to be wrenched away from the contact with either parent. 

I hope you and your ex-husband can work it out so that you both will be able to have a lot of contact with your children, because both the law and all of the information that I received from the people in the psychological profession suggest that children are better off with continuing and active contact with both parents.
 

Best of Luck,
Al

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Question:

Dear Attorney Al,

I need to know how to go about obtaining annulment/uncontested divorce.

            I married in March of 2003 and left him in April of 2003, its now Aug. of 2003, is it possible to still get annulment? We have no children, property or debts.  Back in July of 2003 I had gotten the papers for the annulment filled out on my behalf, then gave them to him, but he never returned them, and now I have trouble finding him.  He comes and goes. Please explain to me what I can do.

Thank you,
Still Married in La Mesa

Response:

Dear Still Married,

            The availability of annulment is not directly related to the length of the marriage in California.  For some reason there is a myth that you can annul marriages, if and only if the marriage is real short, but this is just incorrect.  I don't know why the myth persists, but I do my best to dispel it.

            The availability of annulment is purely determined by a statute in California, and the permissible grounds for annulment include: bigamy, incest, duress, fraud, inability to "consummate the marriage"--i.e. have sexual relations, being underage and insanity.  By now you probably feel in a vague way that you or your estranged husband must have been crazy to marry in the first place, but the case has to be stronger than that to annul a marriage on mental-health grounds.  So unless you or your husband already was married, or you married your brother, or somebody pointed a gun at your head during the ceremony, or there was a big deception that induced the marriage, or you were real young on your wedding day, you can pretty much forget annulment.  Under any circumstances annulment is a complex procedure, for which you would probably need the help of an attorney.

            On the other hand, California has a procedure called "summary dissolution" to streamline divorces, if the marriage is shorter than five years.  Theoretically, cooperating spouses can do a summary dissolution all on their own without the help and expense of an attorney or even a paralegal.  Unfortunately for you, both parties need to sign a joint petition for summary dissolution.  So this might be difficult for someone who can't locate her estranged husband.

            Finally, there is conventional divorce, which requires notice to the other spouse.  This too is difficult, if he can't be located to serve the papers on him, but it is not impossible.  The notice (process serving) can be by publication in certain newspapers, if the court approves that procedure.  An attorney should be able to help you obtain publication notice, which is a technically demanding procedure.

In any case, I suggest you telephone my office at (858) 793-7636 to schedule a free initial consultation with me.

Best regards,
Attorney Al

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Question:

Dear Attorney Al,

I am in some trouble with my Credit Card companies, over $10,000 in debt!

            As well, I have recently picked some bad roommates, who not only stole from me, but also skipped out on the rent, leaving me with an eviction and being sued for the entire rent. I lost my job, and have been forced to move downtown to stay with friends. I would like some information about Bankruptcy. I have 2 more payments on my Jeep and a bank account. I have no idea what Bankruptcy will do....please help!

Sincerely,
Nothing but Trouble

Response:

Dear NbT:

I try to respond to as many of the "AskAttorneyAl" questions as possible, but the volume of mail is somewhat daunting.  I will try to get to your question as soon as possible.  Meanwhile, from your e‑mail it sounds like you may need more legal advice than I can give here.  I give a free initial consultation in person, for areas of law which are within my expertise.  

Please give us a call at (858) 793‑7636, and we'd be happy to set up a free appointment. If you gave us your number, my paralegal might also telephone you.

 Best regards,
Attorney Al

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Question:

Dear Attorney Al:

            I have been unemployed since October & the bills are mounting.  Most of the creditors have been understanding.  They call often & though it can be tiresome I understand why.  Today I received a call from a collector working for a credit card company, who basically told me, "Pay up now or I'll see you in court."

            When I explained that there was no way I could pay at this time, he told me, "Well then I suggest you get yourself an attorney or a  public defender."  I have never been in this position before, & am curious as to what options I have at this point.

Penuriously,
Jobless in Julian

Response:

Dear Jobless:

            In a way the credit harassor did you a favor.  Calling an attorney probably is your best alternative.  If you truly are unable to repay, then probably you will qualify for a Chapter 7 bankruptcy.  Of course, an attorney would need to know your particular circumstances.   

            But the Chapter 7 bankruptcy would stay (halt immediately) all litigation or other debt collection against you, at least temporarily.  The credit harassor's particular debt would be wiped out, he would not be able to call you ever again about that debt, and you would get a fresh financial start.  Please call us at (858) 793‑7636 for free, to discuss particulars and set up an appointment for bankruptcy consultation, if it makes sense. 

Best regards,
Attorney Al

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Question:

Dear Attorney Al: 

            I just graduated June of 2002 and I still haven't found a job.  I recently moved to California from back east, and at the moment, I'm unemployed and 4 months pregnant.  My school loan is roughly $40,000 and on top of that I have credit card debts.  Is filing for bankruptcy the best way to solve these problems?  Please help.  Thank you for your co‑operation.

Yours Truly,
Indebted Graduate in San Diego

Response:

Dear Indebted:                                                                                                                                    

            Because of the credit-card debt, probably a bankruptcy is your best alternative, even though most guaranteed student loans are NOT dischargeable in bankruptcy.  On the positive side: often student loan repayment can be deferred by the lenders at least temporarily in cases like yours.  Call us at (858) 793‑7636 to discuss for free and to set up an appointment.

Best regards,
Attorney Al

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Question:

Dear Attorney Al:

            My ex husband of 4 years was medically discharged from the military (shortly after the divorce was final ‑ March 1997). He has a chemical imbalance in the brain ‑ bipolar disorder. Thus he received Soc. Security benefits. My son receives Soc. Sec. benefits as well since it was a medical discharge. This monthly check is considered to be my ex husband's child support which I agreed to since he cannot afford to pay child support out of his own pocket. Since his discharge, he has not held a job that I am aware of. The issue that arises is that he lives in Los Angeles and does not contact our son regularly. He will see him every 6 weeks or so. As of today, the last time he has any contact with my son was Thanksgiving 2000.

            Between these 1‑2 day visits, he does not make any attempt to call our son nor does he wish to help out with clothing, school supplies, extra curricular activity expenses, etc. So I am left to care for my son 100%. Which is fine by me.

            I remarried June 1999 and will be celebrating my 2nd anniversary soon. We have been together for 4 years and my new husband has been the main father figure in my son's life since he was 2 years old. My new husband and my son love each other dearly. My husband has shared the responsibility of child rearing in every way imaginable and would adopt my son in a heartbeat if given the chance. We are also trying to have children of our own which my son is looking forward to.

            I guess my question would be, do I have any grounds to seek full custody of my 6 year old son and/or seek a step‑parent adoption given the visitation circumstances? I do not in any way deny my ex visitation when he asks to see my son. But he does not seem motivated to have a meaningful relationship with him.

            Currently I have 100% physical custody and 50% legal. My ex husband is also a victim of incest as a child and I worry about those issues as well. Any advice will be greatly appreciated. 

Regards,
Puzzled in Poway

Response:

Dear Puzzled:

            My heart goes out to you with regard to the problems with your ex‑husband.  The short answer to your specific question is that it might be possible to modify the custody to obtain full legal custody.  However, the stepparent adoption option seems more promising.  This would especially be so, if your ex‑husband is willing to sign an agreement to terminate his parental rights, and he legally has the mental capacity to do so.  Please feel free to call my paralegal, at (858) 793‑7636, to set up a free initial consultation with me on these matters. 

Best regards,
Albert Gross

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Question:

Dear Attorney Al:

            I have been paying my bills on time, but I just can't seem to reduce the balances.  They total $30,000, and I don't think I am ever gonna be able to get out from under them.  Should I file BK? 

Thanks,
Bill Payer in Brawley

Response:

Dear Bill Payer:

            Your situation is all too common and incredibly frustrating.   Credit-card interest rates can bury you.   Even if you don’t incur any new debt on the cards, it should take you about 27 years to pay off each card by paying the minimum monthly balances.

            I need more information to tell you whether you can file bankruptcy.  Do your living expenses (exclusive of the credit cards and other debts) exceed your income?  If yes, then you very likely would qualify for a Chapter 7, discharging many of your debts, but the devil is in the details.  Give us a call at (858) 793‑7636 to provide more detail and make a free appointment. 

Best regards,
Al Gross

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Question:

Dear Attorney Al:

            I keep hearing that they’re going to pass a new bankruptcy law that will make it impossible to get out of debt.   Does this mean they’re going to bring back debtor’s prison?  Should I file right away?  I’m up to my eyeballs in debt.

William Robert in Lakeside

Response:

Dear Billy Bob:

            I practice bankruptcy law, and there is general info about bankruptcy on the AskAttorneyAl.com website.  However, I am not an authority on the question of so‑called "bankruptcy reform" and congressional lobbying; nor do I have a crystal ball.  Suffice it to say that the credit card companies are right up there with Enron in the amount of their  “donations” to the campaign funds various elected officials of the legislative and executive branches of our government, and  both houses of congress passed bankruptcy bills more than a year and half ago.  The president is said to be itching to sign such a law, that would take away the bankruptcy safety net from the middle class, just as soon as he can.

            However, nobody knows when or if the two houses of congress will reconcile the differences between their versions of the law, so the president can sign it.  Maybe to be on the safe side you should file sooner rather than later. Please feel free to telephone my office to make an appointment for a free consult on any bankruptcy questions, under current law, related to your finances. 

Your good buddy,
Attorney Al

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Question:

Dear Attorney Al:

Married 13 years.  How soon can I get legally divorced?

Hot To Trot in Del Mar

Response:

Dear Hot:

            It doesn’t matter how long you were married, except that anything over ten years is a “long-term” marriage under California law, for which spousal support is presumed.

            You can petition for divorce immediately, and you can obtain a judgment for the divorce as quickly as you and your spouse can agree on terms or litigate the disputes in a contested trial.  However, the earliest that the divorce can be final is six months after one party has properly served the summons for the divorce on the other.

            Please call us, at 888 EXSPOUSE, i.e. 888 397 7687, for a free initial consultation at our office, if we can be of further service. 

Sincerely,
Attorney Al

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Question:

Dear Attorney Al:

            I am trying to find out how to change a name. My family and I are trying  to change our names legally.  Can you shed any light on how to go about this? I would greatly appreciate any guidance.

Thank you for your valuable time. 

Sincerely,
Tom Outhouse

Response:

Dear Nameless:

            Name changes can be accomplished by the proper petition to the California Superior Court.  Usually the petition is granted, as long as the court is satisfied that you wouldn't be perpetrating a fraud by changing your name. 

            I could help you with a name‑change petition, or you might even try to do it yourself with the help of books at the local library.  If I can be of assistance, please call us at 858-793‑7636 to schedule an appointment for a free initial consultation. 

Best regards,
Attorney Al

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Question:

Dear Attorney Al,

            I have a mediation hearing with the EEOC next week and wondered if you provided "paralegal" services as it relates to having someone go with me. Thank you. 

Thank you,
Stuck in a Meeting

Response:

Dear Stuck:

            You have asked for a service that a paralegal cannot legally provide.  If a paralegal represented you at an EEOC hearing, it would be the unauthorized practice of law by a non-attorney.  That's illegal.  I have done some employment discrimination law (sexual-harassment claims), so I would not mind briefly discussing your problem on the telephone for free to see if it makes sense for you to consider representation.  (Call 858 793-7636.) 

            Employment litigation is often (not always) done on a contingency basis, so the representation might not require any up-front payments by you; you would pay from your recovery.  If your issues are not legal questions that are in my comfort zone, I could also refer you to at least one partnership that does employment law exclusively, on both a contingency and an hourly fee basis. 

Best regards,
Al

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Question:

Hello Attorney Al...I need some help!

            I would like to file bankruptcy but would like to know how much it will cost. Do you make payment plans and how soon can it start? I had a creditor call and threaten me with the Sheriff coming to my work. Can this be done? I was busy when they called and asked them to call back. When can I call or have someone call me?
Please respond!

Thanks!!! NEED HELP!
Penniless in Peñasquitos

Response:

Dear Penniless:

            We can't have real "payment plans" for bankruptcy--where you file now and pay later. However, don't despair, we can still help you, because we can and do have what I call a "layaway" plan.

            Not only would it be bad business to have real payment plans for somebody who is bankrupt, for a bankruptcy attorney it also is illegal. If you think about it, you will realize that a real payment plan would be a conflict of interest, of the sort that is illegal for attorneys. If we had a payment plan, in which you pay us after we do the legal work, we would be one of your creditors. However, you want to hire us to beat your creditors' claims in the bankruptcy court. Whose side would be on, if we were also one of the creditors?

            On the other hand, I believe we can legally take payments in whatever amount you wish to make, until your fees and court filing costs are paid in full. Then we will prepare and file the bankruptcy for you. That's what I call the "layaway plan." I recommend that you make an appointment for a free initial consultation, by calling us toll-free at 888 FAIR PRICE (888 324 7774), because you probably can't afford to not do a bankruptcy.

Best regards,
Al

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Question:

Dear Attorney Al,

            I had a very organized file of all accumulated bills, past due accounts, etc. All of which I lost when I stored some items in San Diego. An entire two boxes were not stored and I do not have all of the organization I did to ensure presenting these items at a later date to file. What can I do now?

Are these all listed on my credit report? Can you, as the representing Attorney request these items if all is accounted for on my report? I am sure my credit report is horrendous! I have kept my head in the sand.
Please advise. Thank you.

Sincerely,
Buried In Debt
from Mira Mesa

Response:

Dear Ms. Debt:

            Not having the recent bills is merely a minor obstacle to filing a successful Chapter 7 bankruptcy. Credit reports usually contain all the creditor information that we really need. Just call us for an appointment at (858) 793-7636.
We will help you.

Sincerely,
Attorney Al

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We will edit all questions submitted and use excerpts from them on this website for the benefit of other visitors. All names and places have been changed to protect the identity of those involved. Please notify us if you have any concerns.

Note: e-mail questions to: ask@askattorneyal.com or send questions by U.S. Mail to:

        AskAttorneyAl.com
       
Law Office of Albert C. Gross
        503 North Highway 101, Suite A
        Solana Beach, California 92075.

OR, call us toll free to arrange a free consultation with an Attorney: (888) 397-7687

The purpose of this column is entertainment and education. Neither
AskAttorneyAl.com nor attorney Albert C. Gross accepts liability for the applicability of the general answers in this column to anyone’s particular situation.  The answers are based upon broad principles of California law, and they should not be taken as legal advice for your particular situation.  Of course, if you have a specific legal problem, you need to retain and consult an attorney.

Regrettably, not all questions can be individually answered.

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