Monday, October 22, 2012

Property Division in Divorce

Perhaps the most important and least understood aspect of divorce law in Georgia is how property is to be divided. Georgia is an equitable division state, which means that property is divided "equitably" or "fairly". Other states, such as California, are "community property" states, which means that in a divorce all property is divided equally, regardless of fault or factors concerning the nature of the assets. When you are divorcing in Georgia, the first issue is what is marital property. Generally, all property earned during the marriage is marital property to be divided. Property you owned before marriage or property you inherited is "separate property", which is as a matter of law awarded to the person who brought it into the marriage or who inherited the money. So, for example, if you owned a house prior to marriage and get divorced, you will get ownership of the house. However, if during the marriage the mortgage is paid off due to marital efforts, then the equity increase would be a marital asset to be divided. Often a property may be part marital, part separate. For example, if you had a 401k prior to marriage, then add to the 401k during the marriage, the part of the 401k contributed during the marriage would be divided, plus a share of any increase due to market forces. It is important to retain a lawyer to make sure that your property rights are protected, especially in regard to pensions and retirement accounts. A legal document known as a QDRO (Qualified Domestic Relations Order) will divide marital assets without tax consequences, separating the asset into accounts in each parties' name.

Please visit my website at

Please call if you need legal representation to Thomas F. Tierney at (770) 631-1100 or e-mail at  

Wednesday, May 2, 2012

Bankruptcy and Taxes

Most people believe that bankruptcy does not help with past due tax problems with the IRS or Georgia.   If a past due tax is old enough, generally speaking 3 years after the filing of the taxes, you can discharge the personal income tax in Chapter 7 bankruptcy.  If you own a company that owes sales or payroll taxes, a Chapter 11 bankruptcy filing can help your company to survive while you make payments.  If you do not file bankruptcy, the IRS or the Georgia Department of Revenue can shut down your business.  If this happens, they may seek payment of these taxes from the owner.   Trust violations, like failing to send payroll deductions or sales tax receipts, are not dischargable in bankruptcy.   Again, if not addressed by bankruptcy or payment plan, the IRS and Georgia will shut your business down.

I offer advice and experience in helping clients figure out the best way to solve serious tax problems.  The range of solutions is from negotiating a payment plan, to making an Offer in Compromise, to filing a Chapter 7 or Chapter 11 bankruptcy.   Regardless, do not ignore the tax authorities.   The people who work for the IRS and Georgia Department of Revenue are simply trying to do their job.   Having a professional take charge of this process makes their job easier and will provide the best result for you and the government.

Please visit my website at

Please call if you need legal representation to Thomas F. Tierney at (770) 631-1100 or e-mail at  

Tuesday, April 17, 2012

Chapter 11 Liquidation

Often a Chapter 11 filing seeks to reorganize a business by eliminating unprofitable obligations and re-starting as a viable business.   Another legitimate goal of a Chapter 11 filing can be the orderly liquidation of the assets of a business for the benefit of both the owners of the business and the creditors.   An owner of a business may be the best person to sell assets of a business at the highest price due to the owner's familiarity with the business and business contacts.    It often makes sense for an owner to continue to run the business while seeking a sale of either the entire business or assets of the business.

Being under Chapter 11 Bankruptcy protection can be the best way to wind up or sell a business in trouble.

Visit my website at:

Friday, March 30, 2012

Why Chapter 11 Bankruptcy can be better than a Chapter 7 Bankruptcy

In a Chapter 11 Bankruptcy you are in charge of selling assets and paying creditors.   If you have significant assets to be sold you can make sure that you get the best price for these assets, and you can also negotiate with your creditors to settle these debts at the lowest price.   In a Chapter 7 Bankruptcy a Trustee is appointed who makes all decisions regarding what to sell and at what price.   He is not concerned with your interests, rather he cares about the interests of your creditors.   Additionally, the Trustee charges fees for all of the time he spends selling your assets and paying creditors, which fees are often a considerable portion of the assets.

Individuals can file for Chapter 11 Bankruptcy protection, and the advantages can be considerable, because you do not have to pay a Chapter 7 Trustee his hourly rate.  In other words, in a Chapter 11 you can be your own trustee, pay a lawyer who works for you, and have control over the liquidation process.  In a Chapter 7 a trustee is appointed who is paid from your assets, and you have no control over the liquidation process.

Visit my website at:

Friday, March 23, 2012

Offer in Compromise or Installment Plan

When you have past due federal income taxes and wish to resolve this issue, you need professional advice regarding your payment options.   To set up either an offer and compromise or a payment plan the IRS will want financial information regarding your income and assets to determine what the IRS believes they can reasonably collect.  If the amount is not too high and you a can satisfy the debt quickly then a payment plan is a good option.   If you owe a lot of money and the amount you can afford to send will not pay the debt quickly, I would recommend making an Offer in Compromise.

In an Offer in Compromise you can either pay a lump sum or over time.  If you enter an installment agreement interest continues to add up and you may not ever pay off the IRS debt.   An Offer in Compromise may be a better deal since you will have an end date for your payments.  If you intend to file bankruptcy to discharge the IRS debt, it may be in your best interests to make a payment arrangements until such time as you can file bankruptcy to discharge the debt.

You most likely will need professional advice to figure out the best choice to make to resolve your IRS problem.

Visit my website at:

Monday, March 12, 2012

Child Support in Georgia

Georgia has child support guidelines to determine the amount of child support to be paid.   The guidelines are extremely complicated and include many factors, which a good attorney can help advocate for you.  The first factor is the amount of gross income each parent earns.   Typically this includes overtime income.  If a spouse does not work, the Court can impute income to that spouse.  A court can also impute income to someone who has the ability to earn more money.   The income of a self employed person can be hard to prove, as a self employed person may deduct (legitimately and otherwise) many expenses which lower their gross income.

Once the gross income is determined, then a determination is made regarding the relative income of each parent as a unit.  For example, if each parent earns $3,000.00 a month, then the family income would be $6,000.00 and each parent would earn 50 percent of the income.  If one parent earned $4,000.00 a month and the other parent earned $2,000.00 a month, the family would still have a gross income of $6,000.00, but the first parent would earn 66 percent of the income and the other parent 33 percent.

This is important as a support obligation is determined according to this ratio.   A family with two (2) children that earns $6,000.00 would be determined to spend $1,384.00 in caring for this children.  The parent earning $4,000.00 would be presumed to pay 66 percent of this, or $922.71, and would pay 66 66 percent of medical insurance and 66 percent of daycare costs.

There are many other factors the Court uses in determining child support.   Having a good lawyer to help you with this issue can make sure a fair amount of child support is determined.

Visit my website at:

Tuesday, March 6, 2012

Offer in Compromise

The IRS has a program to settle past due IRS debts which is called an Offer in Compromise.  The IRS has 10 years to collect on past due debts, and will get very serious about collection when it gets close to the ten year mark.  In this bad economy, many people with failing businesses use their money to keep a business running instead of paying their taxes.   When the business fails, the individual is left without income but still owes the taxes.

Beware of companies alleging "Pennies on the Dollar" settlements as if this is a foregone conclusion.  The IRS Offer in Compromise program is essentially very simple in concept.   The offer should equal the assets of the taxpayer plus 48 months of disposable income as derived by IRS guidelines for a lump sum payment.   By disposable income I mean your income less living expenses as defined by the IRS.   For example, if you now earn $50,000.00 a year as a family of four, based on the IRS guidelines you may only have $100.00 a month to pay towards the debt.   An acceptable offer would then be $4,800.00 plus the value of assets.  You have 5 months to pay this amount.

 I am also a bankruptcy attorney, so I can advise you of your options in that regard.  For example, it may be in your best interest to set up a payment plan for a period of time and then file bankruptcy.

I am a local attorney who not part of a large mill organization, and I may be able to help you with your IRS problems.

Visit my website at:

Tuesday, February 28, 2012

Business Valuation in a Divorce Setting

In a high asset divorce the most valuable asset may be the "family" business.  Valuation of a "family" business is extremely complicated and requires the services of an expert accountant and business evaluator.  Due to my cross experience in representing owners of businesses in Chapter 11 matters as well as my over 20 years as a divorce attorney, I am well qualified to represent clients in this regard.

There are basically two (2) ways to value a business.  The first is the "sticks and bricks" approach, ie: figure out how much you can sell all tangible assets for in a public sale.   Obviously this would be a lowball approach in most divorce cases as a running business is worth more than just the machinery and receivables.  The second way is to have the business appraised, like real estate, by a licensed appraiser.   The appraiser will find comparable sales for similar businesses and create a multiplier to figure the fair market value based on gross revenues.   For example, if the appraiser found that a similar business that grossed $500,000.00 a year sold for $1,000,000.00, the multiplier would be 2.   In that case, a business that grossed $200,000.00 would be worth $400,000.00 under this analysis.

This a simplified explanation of how the appraisal process works.   However, the main consideration is whether the spouse is a "key employee", who, in fact, creates all the business.   If the business would fail if the spouse no longer ran the business, the business may not be worth more than the "sticks and bricks".   For example, a McDonald's franchise might be easily sold without losing its value whereas a well respected doctor's practice would not be as transferable, especially if the doctor does not sign a non-compete clause.

Visit my website at:

Thursday, February 16, 2012

What is a Chapter 11 Bankruptcy?

A Chapter 11 Bankruptcy is a legal option under bankruptcy law to reorganize your business while continuing to be in control of the business.   In Chapter 7 bankruptcy and in Chapter 13 Bankruptcy a Trustee employed by the Court system is responsible for managing the "bankruptcy estate" and, in essence, owns all property for the benefit of the creditors.

What is a "bankruptcy estate"?   In Chapter 7 it is any property that is not "exempt"; property that is to liquidated to pay creditors.  In Chapter 13 is includes the income of the Debtor.   In both Chapter 7 and Chapter 13 YOU ARE NOT IN CHARGE.

In Chapter 11 bankruptcy YOU ARE THE TRUSTEE, YOU ARE IN CHARGE.   With Court approval, you determine what to sell to pay debts and what income stream is available to pay creditors.  Your responsibilities include opening new bank accounts designating that you are a "Debtor in Possession" and filing monthly operating reports.   You have certain time limits to propose a "Plan" to reorganize your business,  get rid of unprofitable business decisions such as unprofitable leases or other contracts, and to negotiate a payment plan for past due debts.   Simply put, you get time to save a business in trouble but one that still could be profitable in a new form.

In small businesses the two major problems I see are businesses that are behind in payroll or sales taxes, hoping that an upturn will provide the needed capital, or businesses that have a balloon note that has come due or is behind.   Chapter 11 can be a good tool to resolve both of these issues.

Visit my website at:

Friday, February 10, 2012

Criminal Sentencing Reform

Chief Supreme Court Justice Carol Hunstein in her 2011 State of Judiciary Address wisely notes that our current criminal system is unaffordable.

She notes:

Keeping our citizens safe is one of government’s fundamental obligations. Indeed our Georgia Constitution requires the government to protect the public safety. The courts play a crucial role in doing so.

Today, Georgia stands on the brink of making significant reform in how it sentences criminal offenders. A national wave of sentencing reform is sweeping the country, and it holds bright promise for Georgia.

Last September, Rep. Wendall Willard and I attended a conference in Alabama called by the Chief Justice of that state to consider the prospect of sentencing reform. Alabama is currently at 120 percent of prison capacity. Georgia is not far behind, at 106 percent. The fact is, there are a lot of people in prison who are a greater threat to themselves than to society. Rather than lock up drug addicts and the mentally ill, we must reserve our prison beds for our most serious criminals – those who commit violent crimes; those who commit crimes against children.

Many states, including Texas and South Carolina, have discovered they can keep the public safer and spend less money by supervising some non-violent offenders outside of prison and treating the root causes of crime.

Georgia’s leaders in all three branches of government recognize that we can no longer afford the more than $1 billion it costs us annually to maintain the fourth-highest incarceration rate in the nation. Today, one of every 13 Georgians is behind bars or on probation or parole. That is the highest rate in the nation of people under some kind of criminal justice restraint. Ladies and gentlemen, Georgia has proven we can be tough on crime, with mandatory minimum sentences that allow no chance for parole. But are we any safer? And at what cost?

Unfortunately, there will always be those who commit crimes. But we cannot continue to build more prisons.

Local Judges are aware of the overcrowding and cost of incarceration, and are willing to consider alternatives if offered.   A good lawyer helps in presenting these options at the onset of non-violent criminal charges....

Please visit my website at

Please call if you need legal representation to Thomas F. Tierney at (770) 631-1100 or e-mail at

Monday, February 6, 2012

IRS and Georgia State Taxes

If you have been threatened with levy and garnishment by the IRS and the Georgia Department of Revenue, you need immediate professional help.    There are numerous options you have to work with the tax collectors, however, the worst response to do nothing.   Agents for the IRS and Georgia Department of Revenue are like all collection agencies; they just want to collect on a debt.   Like all collection agencies the IRS and Georgia Department of Revenue will NEGOTIATE as this is the best way for them to collect at least some of the money owed.

Beware of national businesses touting "PENNIES ON THE DOLLAR".   I am an attorney who has practiced in South Metro Atlanta for more than twenty (20) years, and will be responsive to your needs.   If you hire an out of state agency, beware.  TaxMasters and JK Harris, two national companies, are being investigated for unfair trade practices.

Both the IRS and the Georgia Department of Revenue have programs which are known as "OFFERS IN COMPROMISE".   Essentially, these programs consist of an assessment of your assets, your income, and your expenses to determine a reasonable amount you can afford to pay to settle a tax debt.  

The IRS and Georgia Department of Revenue will want to discover all of your assets.  If these can be liquidated, they will expect you to do so to to pay towards your debt.  Next, the IRS will want to know your income.   Oftentimes tax debt come about due to a failed business which failed to pay taxes to keep afloat, and now the individual has had to obtain a new job with less income, perhaps only sufficient to pay normal bills for the individual.  If you do not have assets to be liquidated and if you do not earn a great deal of money, the IRS and the Georgia Department of Revenue will accept an offer based on your new circumstances.


The best option often for tax resolution is often to file Chapter 7 Bankruptcy.   Under certain circumstances, if a personal income debt is more than three years old, you can discharge this debt in bankruptcy.   This will not discharge personal obligation for sales or payroll tax.

If your business is still profitable, you can reorganize your tax obligation through a Chapter 11 Filing.   If your business owes a great deal of payroll or sales tax, a Chapter 11 Bankruptcy can be filed to have these debts paid in a reasonable manner.

If the debt is the result of failing to file or disagreements regarding legitimate business deductions, you have the right to dispute the IRS findings.   Disputes often arise due to failing to provide the IRS with appropriate proof of legitimate deductions.

    If you have significant assets and income and do not qualify for bankruptcy or an Offer in Compromise, you can work out a payment plan with IRS and Georgia Department of Revenue to avoid levy and garnishment.

The worst reaction to collection activity is to do nothing.   We enjoy helping people get out the hole of tax debt.

Please visit my website at

Please call if you need legal representation to Thomas F. Tierney at (770) 631-1100 or e-mail at