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Ellen
Ellen, Attorney
Category: Bankruptcy Law
Satisfied Customers: 36714
Experience:  Bankruptcy Lawyer. Experienced.
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I am married but I am considering filing Chapter 13 due to

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I am married but I am considering filing Chapter 13 due to debt issues beyond my control now. I have gotten myself into a hole and can't see any way out. My question is I am wanting to file but I don't want this to affect my husband. Can I file seperate from him? Some of the debt is in both our names and some in just mine. The main problem is the mortgage and that is in both our names. We are behind 2 months almost 3 and I have tried to refinance but due to the late payments and other debt to income ratio we can not refinance.
Hello,


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

answer to your specific question:
A husband and wife are not required to file a bankruptcy jointly. One party can file without the other.


The effect on the non-filing spouse will be dependent upon whether there are joint debts and/or joint assets. If there are no joint debts and no joint assets, there may be little or no effect on the non-filing spouse. If there are joint debts and/or joint assets, the non-filing spouse would remain liable on the joint debt and the joint assets would need to be included in the filing.

possible alternative solution:
Consider negotiating with the lender for a modification instead of a re-finance.

The first thing to be aware of is that a lender is not going to modify a fully performing loan. You will typically need to be 90 days behind before they will discuss any meaningful modification. They will only modify to mitigate their risk . As long as you are less than 90 days behind, they have no incentive to modify.
Customer: replied 6 years ago.

I also have 2 cars that I used as collateral that are in my name alone. One was to a title loan company and the other to a loan company (i.e. First Franklin) Will I have to sell them since they are part of my debt? I am listed on my husbands truck with a loan from GMAC will it affect that loan or does it go back to the joint debt responsiblity you described? Thank you for your help. I am just in a huge debt hole and scared to death. I don't want to loose my house or my cars. One was a gift from my father now deceased.

Hello,

The assets that you may retain in a bankruptcy depend upon the state you reside in and the chapter bankruptcy that you file. I will explain


As an individual, there are two types of bankruptcy available. A Chapter 7 and a Chapter 13. There are distinct differences in between a Chapter 7 and a Chapter 13 bankruptcy.



A Chapter 7 bankruptcy could discharge (erase) all of your unsecured debt such as credit cards, judgments and personal loans. It would be an opportunity for a fresh financial start. However, you may have to surrender assets, if any, that exceed your exemption.



A Chapter 13 bankruptcy is a repayment plan for an individual. It may require that you repay some of your unsecured credit card debt over a 3 -5 year period. However, you may retain assets that exceed your exemption.


Here are the exemptions for Georgia:
http://www.bankruptcyinformation.com/GA_exemp.htm



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


Thank you,
FLAandNYLAWYER
Ellen and other Bankruptcy Law Specialists are ready to help you

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