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Category: Bankruptcy Law
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Experience:  Attorney in the practice of Bankruptcy Law since 1996
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I am wondering about filing bankrupt. My ex was supposed to

Customer Question

I am wondering about filing bankrupt. My ex was supposed to have a year to refinance and that didnt happen and my credit is shot. She purposely let house get to foreclosure status and then filed chapter 13 without telling me and still has yet to make any payments on mortgage. I cant afford to because of child support and my own living expenses plus other pre-divorce bills. I am wondering if i can file a chapter 7 so that I can start over. I am currently sueing for custody of my two children and it looks like it will turn out in my favor and would like to have a clean start to support them.
Submitted: 5 years ago.
Category: Bankruptcy Law
Expert:  JoeLawyer replied 5 years ago.
Hello Siyan:

I'm sorry to hear about your financial situation. Divorce often leads to bankruptcy, or multiple bankruptcies. Sounds like good news on your custody issue though.

Filing Chapter 7 may be a good course of action for you. Of course you will need to qualify to file Chapter 7, which means you have to pass the Means Test, you cannot have filed a previous Chapter 7 within the preceding 8 years or a Chapter 13 which received discharge within the preceding 6 years, among other considerations.

Generally, pursuant to 11 U.S.C. 523(a)(15), divorce obligations (other than support) are not dischargeable in Chapter 7 (though they are dischargeable in Chapter 13). So, I assume she filed Chapter 13 since that would allow her to discharge her divorce obligation to pay the mortgage like she was supposed to. Technically, though, if you file Chapter 7 then any obligations you were supposed to pay in the divorce decree would not be discharged, but many courts will allow you to discharge the obligation in Chapter 7 when the other spouse filed bankruptcy since the debt cannot fall back on them due to their discharge. In fact, if you file Chapter 7, she may be able to convert her case to Chapter 7 also since her risk under the divorce decree will be basically mooted with your filing.

Obviously these issues can get very complicated, so you should discuss your options with an attorney who can give you advice based on your specific circumstances, but Chapter 7 is something you would want to discuss with your attorney since it may be a good way to get a fresh start.

I hope this helps! If you have any follow up questions, please ask!

Joe

LEGAL NOTICE: I am only licensed to practice law in certain state(s) and I cannot give legal advice to someone who does not reside in a state in which I am licensed, nor shall anything I say in the above answer or elsewhere on this site be deemed legal advice, even to someone who resides in a state in which I am licensed. Fees I receive for answering questions are paid for information, not for legal advice. This forum is designed to provide general information only, and information herein is not warranted to be correct or applicable in any way since laws may have been misinterpreted herein, since laws change from time to time, and since the impact of those laws on any particular situation varies. The information presented in this site shall not be construed to be formal legal advice nor the formation of an attorney-client relationship. Persons accessing this response are encouraged to seek independent legal counsel in their jurisdiction for guidance regarding their individual circumstances. Do not take any action or inaction based on information presented herein since it is informational and may not be accurate or applicable to you; it merely attempts to give you a basis of knowledge to help you formulate questions to ask a legal or other professional in a face-to-face meeting in your jurisdiction. Joseph Ross does not hold himself out to be a specialist or expert in any area, regardless of assertions made by any third party, and any implication of being an expert or specialist herein is made in error. I hope the information presented above is useful to you. Answer above is (c) Joseph Ross. All rights reserved.
JoeLawyer, Attorney
Category: Bankruptcy Law
Satisfied Customers: 767
Experience: Attorney in the practice of Bankruptcy Law since 1996
JoeLawyer and other Bankruptcy Law Specialists are ready to help you
Customer: replied 5 years ago.
Okay. Thanks for your answer. I do have another question...in your opinion, would my situation be too difficult to represent myself. The only creditors would be the mortgage company, my car loan holder (my car was repossessed recently due to my inability to keep up with payments since divorce), and a few credit cards from marriage. I have nothing else on my credit since the mortgage has basically ruined me i havent been able to obtain any other credit since divorce. I have been quoted from $1000 to $1500 for lawyer fees plus around $300 for filing. By the time I save enough to pay, I might have my boys in my custody and Id like to get it started beforehand. I was thinking if I did it on my own, it would minimize costs and Id be able to get it started sooner.
Expert:  JoeLawyer replied 5 years ago.
That is a tough call, Siyan. A lot of people can successfully represent themselves, but the issue in your case is the divorce angle. If you ex-wife drags you back to divorce court alleging that you are in contempt of the divorce court for failure to pay some debt you were ordered by the divorce decree to pay because it was discharged in the bankruptcy case, then I do not know how well you would fare.

An experienced bankruptcy attorney could hopefully guide you through this potentially sticky area and litigate the dischargeability of your divorce obligations in light of your ex-wife's bankruptcy protection also.

I wish I could answer this one, but that is one of those crystal ball questions if you know what I mean. You may need to file Chapter 13 if your local courts have already established that the other spouse's bankruptcy does not let you of the hook for your divorce decree obligations.

You could certainly try it, and if it gets ugly, hire a lawyer. One thing to remember is that failing to list creditors is a big problem, so it is normally a good idea to run a credit report before filing the bankruptcy and be sure and list all creditors and ex-spouses in your petition.

You also have to re-list all of the real property (on Schedule A of your bankruptcy petition) and personal property (on Schedule B) again on Schedule C, and then list the exemption which protects that property so the court doesn't take everything and sell it. You can view a website HERE which purports to list what all property can be exempted (i.e. protected) by persons filing bankruptcy in Missouri, though I personally don't know how accurate the website is. Missouri also apparently lets you use the federal supplemental exemptions to protect property, which you can view HERE.

Joe

LEGAL NOTICE: I am only licensed to practice law in certain state(s) and I cannot give legal advice to someone who does not reside in a state in which I am licensed, nor shall anything I say in the above answer or elsewhere on this site be deemed legal advice, even to someone who resides in a state in which I am licensed. Fees I receive for answering questions are paid for information, not for legal advice. This forum is designed to provide general information only, and information herein is not warranted to be correct or applicable in any way since laws may have been misinterpreted herein, since laws change from time to time, and since the impact of those laws on any particular situation varies. The information presented in this site shall not be construed to be formal legal advice nor the formation of an attorney-client relationship. Persons accessing this response are encouraged to seek independent legal counsel in their jurisdiction for guidance regarding their individual circumstances. Do not take any action or inaction based on information presented herein since it is informational and may not be accurate or applicable to you; it merely attempts to give you a basis of knowledge to help you formulate questions to ask a legal or other professional in a face-to-face meeting in your jurisdiction. Joseph Ross does not hold himself out to be a specialist or expert in any area, regardless of assertions made by any third party, and any implication of being an expert or specialist herein is made in error. I hope the information presented above is useful to you. Answer above is (c) Joseph Ross. All rights reserved.


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Attorney in the practice of Bankruptcy Law since 1996