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socrateaser
socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 33543
Experience:  Attorney and Real Estate Broker -- Retired (mostly)
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my mom lives in california, she has been married for 39 yrs,

Customer Question

my mom lives in california, she has been married for 39 yrs, my dad has been verbally abousing her, he has threatned to sell there home, and has demanded 100,000.00 in the next 30 days, he has debt, medical bills, he dose not work, he has no savings, he has no checking acct, my mom dose not work, she is 73yrs old, she wants to keep her home, if he leaves will she be stuck with all his debt, my mom has her own checking acct she has no credit cards, as they had to file bankruptcy yrs ago.
Submitted: 2 years ago.
Category: Bankruptcy Law
Expert:  Attorney_Joseph replied 2 years ago.

If he simply "leaves", then any debts that are listed in their names jointly may be pursued by the creditors against either or both of them. However, if one of them actually files for divorce, one aspect of the divorce proceeding would be the division of any liabilities.

 

As to division of liabilities, the court generally divides things equally. For example, if there is $100,000 in debt, the presumption is that they would each walk away with $50,000 of that debt.

 

However, this could be divided up differently. Perhaps if one party has more of the assets, such as keeping a marital home, they might keep more of the debt as well to off-set the greater distribution in assets. Another possibility would be for the party with the greater ability to pay to have more of the debt. Yet another possibility, though unusual, would be to attribute the debt to the party that incurred the debt. This might happen where the debt was wasteful, such as one party going to Las Vegas shortly before the filing of the divorce and losing $100,000.

 

This can be a rather complex situation, please let me know if anything requires clarification.

 

I hope you found my answer helpful. If so, please click on the green ACCEPT for my answer. This is necessary for me to be paid for my work and so that I can get credit for assisting you. Even if you are a subscription member, you will need to click ACCEPT. Your question will not close, and you will still have the opportunity to follow-up if needed. Leaving a bonus and positive feedback is not required, but doing so is certainly appreciated! Thank you and good luck!

 

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Customer: replied 2 years ago.
Relist: Answer quality.
my mom dose not have the money to pay for any of his bills or debt, my sister is helping to support her as for her not to lose the house, my dad receives 2300.00 a month and gambles it all away never helping with normal monthly living bills, has been for the entire time they have been married, so if he walks away will my mom be left to pay his debts, and medical bills, she has no money to pay any thing for him
Expert:  socrateaser replied 2 years ago.
Hello,

Different expert here. I am a member of the State Bar of California and I have comprehensive knowledge of both family and bankruptcy law.

How long ago was it that your parents' previously filed for bankruptcy?
Customer: replied 2 years ago.

Its been many years, now that it dose not show up on his credit any more

 

 

Expert:  socrateaser replied 2 years ago.
Your parents could file for bankruptcy again and thereby eliminate most of the issues of your concern (assuming that the previous bankruptcy was discharged at least eight years ago. [Bankr. Code § 727(a)(8)]).

Debts incurred in connection with a dissolution of marriage or marital settlement agreement are nondischargeable in bankruptcy -- however, debts incurred during marriage to a third party can be discharged -- even if the debt is assigned by the court to one or the other spouse, because once the debt is no longer owed to the third party, neither spouse has any liability to the other for that debt. Bankr. Code § 523(a)(15).

This would make the dissolution extremely simple, based upon how you describe the circumstances.

The alternative would be a stressful and potentially costly battle over issues that the bankruptcy can easily resolve.

Hope this helps.

NOTICE: My goal here is to educate others about the law. I am always available to answer your follow-up questions after you click Accept – however, if you do not click Accept, the website gets paid, and I receive nothing. This is true, even if you are on a subscription plan. So please click Accept, so that I will be able to continue to provide this service for others in the future.


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Customer: replied 2 years ago.
my folks are not in a divorce process, my dad is planning to walk out on my mom, My mom finally has a decent credit score I highly doubt that she will want to go thru a second bankruptcy, so what your saying is that by my dad walking out, and the fact that my mom dose not have the money to pay any of his debt or medical bills, that she will be left holding the bag, could they attack her social security, till all is paid
Expert:  socrateaser replied 2 years ago.
My answer was intended to try to deal with the possible future events. If your dad takes a walk, and he has no ability to pay, then your mom will be left holding the bag, because under Family Code 910 et. seq., spouses are liable for each other's debts incurred before or during a lawful marriage while residing in California -- at least to the extent of any marital community property interest (property acquired by either spouse during marriage, except if acquired by gift or inheritance).

The only practical escape from this issue is bankruptcy -- because even if the court were to assign the debts to your father, the original creditors can still sue your mother to collect.

I really wish that there were some other solution, but there is not. If your mom wants to be free of your dad's allegedly poor money management skills, then there is only one lawful means of accomplishing that goal: bankruptcy.

For a bankruptcy and/or family law attorney referral, see this link.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

Customer: replied 2 years ago.

1. so if my mom dosent file bankruptcy again, she has no money to pay his bills, they will take the house?

 

2.My Dad leaves, dose my mom file bankruptcy on her own?

Expert:  socrateaser replied 2 years ago.

1. so if my mom doesn't file bankruptcy again, she has no money to pay his bills, they will take the house?

 

A: California has something called a "homestead exemption." Code Civ. Proc. 704.710; 704.730. It has three tiers: $75,000; $100,000; and $150,000. Depending upon your mother's circumstances, if the equity (fair market value of the home minus total of all loans) is less than or equal to the applicable tier, then the home is absolutely protected, and cannot be sold, whether in or out of bankruptcy. If the equity exceeds the applicable tier amount, then the home can be sold, but the tier amount must be paid to your parents, before any sale proceeds are paid to a creditor.

 

So, the answer depends heavily on all of the facts and circumstances at the time of proposed sale of the home.

2.My Dad leaves, dose my mom file bankruptcy on her own?

 

A: If your father refuses to file bankruptcy jointly, then he will be separately stuck with the debts. However, any community property would remain subject to creditor seizure. So, failure to file a joint bankruptcy, or, alternatively, divorcing and separating any community property before filing bankruptcy, would leave any asset, such as the house, potentially exposed to a creditor attack. BotXXXXX XXXXXne: divorcing first and filing bankruptcy afterwards, or filing joint bankruptcy appears to provide the greatest protection.

 

Note: community property in bankruptcy is a very complex issue. There's no easy way to analyze the outcome, without having all of the financial information available for review. You mom may want to contact a local bankruptcy lawyer before making any decision, so that the entire picture can be considered.

 

Hope this helps.

 

 


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!


 

Customer: replied 2 years ago.
My mom is the only one listed on the mortgage loan, but both there names are XXXXX XXXXX the deed, can my dad by himself with out my mom. Sell the house or do a mortgage reversal, or get a credit equity loan?
Expert:  socrateaser replied 2 years ago.
Can my dad by himself with out my mom. Sell the house [No. Family Code 1102(a)] or do a mortgage reversal [theoretically, yes, but no lender would make the loan, because a court would almost certainly refuse to enforce it against the nonsigning spouse], or get a credit equity loan [Yes, but once again, most lenders won't make the loan, because of the risk of getting tied up in a lawsuit].

A: See above.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 33543
Experience: Attorney and Real Estate Broker -- Retired (mostly)
socrateaser and other Bankruptcy Law Specialists are ready to help you

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