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FiveStarLaw
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I am divorced (living in Mississippi at the time) and my ex-husband

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I am divorced (living in Mississippi at the time) and my ex-husband "promised to pay" a mortgage on our manufactured home until the house was sold. The mortgage still has both of us listed on the loan. He stopped making payments and told the mortgage company I would pay. I filed a contempt of court charge against him and in response, he and his spouse filed for bankruptcy. My lawyer said that because the divorce settlement doesn't list this as spousal support or alimony and is just a promisory statement, I don't have a chance at having this debt declared non-dischargeable by the bankruptcy court, holding him responsible. If I file a complaint to the bankruptcy court and they deem my complaint as frivolous, I could be held responsible for his attorney's fees.   Should I still forward a copy of the divorce decree to the bankruptcy court without an attached complaint? What do you recommend?
Submitted: 5 years ago.
Category: Bankruptcy Law
Expert:  FiveStarLaw replied 5 years ago.
Hello,

What exactly does the settlement indicate in regard to the debt?
Customer: replied 5 years ago.

That husband agrees to pay the mortgage payment on said home until the home sells.

 

 

Expert:  FiveStarLaw replied 5 years ago.

Hello,

Thank you for your question. I am happy to assist you.

I have a completely different view than your lawyer. You may want to refer your lawyer to the new bankruptcy code Section 523 (a) (15) which protects most marital property settlements from discharge.


Obligations from a divorce to pay support are not dischargable. Property settlements are presumed to be nondischargeable. It is unclear whether the payment is a property settlement or a support payment. But in either case, the action cannot be deemed frivolous. In fact the bankruptcy court is the proper venue to bring the action to determine the discharability of the debt.

To challenge the discharge of a property settlement agreement you must bring an adversary proceeding in bankruptcy court within sixty days of the first meeting of creditors. If you fail to do so, the debt will be discharged.


In order to overcome the presumption that the property settlement is nondischargable, your ex would need to show that he cannot pay the debt and still take care of himself, his dependents, and his business, or that discharging the debt would result in a benefit to the debtor that outweighs the harm that would be caused to the former spouse.

I hope that the information which I provided was helpful to you.

Best wishes for a successful outcome. If you have additional questions, please do not hesitate to submit them to me directly.

Thank you,
Customer/span>

THIS IS FOR INFORMATION ONLY. NO ATTORNEY-CLIENT RELATIONSHIP EXISTS. PLEASE CONSULT A LAWYER IN YOUR STATE FOR LEGAL ADVICE

Customer: replied 5 years ago.

 

I think your answer is very helpful.

I do not believe the divorce agreement specifies Property or Spousal support. It seems to be worded as just a "statement" by my ex. I can obtain a copy of this during my lunch break and copy word for word to send this to you if it will help.

My lunch break will be in about 1 hour, so I should be able to send this by 12:30pm eastern time. Is this acceptable to you?

 

 

Expert:  FiveStarLaw replied 5 years ago.
Hello,

Yes it is acceptable.

Please note that it is either spousal support or property settlement. It can be nothing else since the obligation arose from your property settlement agreement. In your adversary, you can put two counts. One count for spousal support. One alternative count for property settlement. I strongly suggest that you retain a qualified bankruptcy attorney to assist you and do not miss the deadline to file.

I hope that this information has helped you.


If I can be of assistance in the future, please ask for .


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THIS IS FOR INFORMATION ONLY. NO ATTORNEY-CLIENT RELATIONSHIP EXISTS. PLEASE CONSULT A LAWYER IN YOUR STATE FOR LEGAL ADVICE

FiveStarLaw, Attorney
Category: Bankruptcy Law
Satisfied Customers: 36413
Experience: Bankruptcy Lawyer. Experienced.
FiveStarLaw and 2 other Bankruptcy Law Specialists are ready to help you
Expert:  FiveStarLaw replied 5 years ago.

Hello,

Your documents were just forwarded to me. I have reviewed the the documents.

The debt is either spousal support or property settlement. My reading is that a property settlement finding would be more likely. As previously discussed, a property settlement is presumed to be nondischargable. To have the benefit of the nondischargability of the debt, you must file an adversary.


In the adversary you will want to have the two counts previously discussed. One count for spousal support. One alternative count for property settlement.

You must bring an adversary proceeding in bankruptcy court within sixty days of the first meeting of creditors. If you fail to do so, the debt will be discharged.

You will need a bankruptcy attorney to represent you in court and in the preparation of the pleadings. Bankruptcy is a very specialized field and there have been numerous changes to the Bankruptcy Code. Adversaries are a sub-specialty of bankruptcy law. This being said, do not use an unqualified lawyer.

I hope that the information which I provided was helpful to you.

Best wishes for a successful outcome. If you have additional questions, please do not hesitate to submit them to me directly.

Thank you,
Customer/span>

THIS IS FOR INFORMATION ONLY. NO ATTORNEY-CLIENT RELATIONSHIP EXISTS. PLEASE CONSULT A LAWYER IN YOUR STATE FOR LEGAL ADVICE
FiveStarLaw, Attorney
Category: Bankruptcy Law
Satisfied Customers: 36413
Experience: Bankruptcy Lawyer. Experienced.
FiveStarLaw and 2 other Bankruptcy Law Specialists are ready to help you

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