How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Phillips Esq. Your Own Question
Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Bankruptcy Law
Satisfied Customers: 17879
Experience:  B.A.; M.B.A.; J.D.
16551887
Type Your Bankruptcy Law Question Here...
Phillips Esq. is online now
A new question is answered every 9 seconds

theft/loss of retirement 401k assets re divorce/bankruptcy

Resolved Question:

Thanks for answer to previous question. I wanted to see if you were knowledgeable before the next question: re self-directed 401k re divorce/bankruptcy. significant Plan assets (more than $50K) stored at home were removed while away. can't prove who took them, but only one person I know of might have guessed their location and had access to the home via the children key (no signs of break-in). prefer not to have police involved due to kids. Any idea how a family law court would handle this? for purposes of this question, let's assume the family law court holds me 100% responsible (I realize you're not CA, so a general-principle answer will be fine for now.) Would there be a civil judgment that's dischargeable by bankruptcy? the answer probably determines whether my next home is a cardboard box.
Submitted: 5 years ago.
Category: Bankruptcy Law
Expert:  Phillips Esq. replied 5 years ago.
Thank you for giving me the opportunity to assist you. I encourage you to ask me for clarification, if you are not clear with my Answer.


Question: Thanks for answer to previous question. I wanted to see if you were knowledgeable before the next question: re self-directed 401k re divorce/bankruptcy. significant Plan assets (more than $50K) stored at home were removed while away. can't prove who took them, but only one person I know of might have guessed their location and had access to the home via the children key (no signs of break-in). prefer not to have police involved due to kids.

Any idea how a family law court would handle this? for purposes of this question, let's assume the family law court holds me 100% responsible (I realize you're not CA, so a general-principle answer will be fine for now.)

Response 1: I am not sure how a family Court Judge would handle this. However, it would really depend on the credibility of witnesses. If the Court finds you credible, the Court would rule against him, but if the Court finds your testimony lacking, the Court would rule in favor of your husband.

Would there be a civil judgment that's dischargeable by bankruptcy? the answer probably determines whether my next home is a cardboard box.

Response 2: Any Judgment regarding marital property settlement would not be dischargeable in both Chapter 7 Discharge and Chapter 13 Hardship Discharge. A Hardship Discharge is where a Chapter 13 plan is not complete due to financial hardship of the debtor and the Court still grants the debtor a Discharge as if the plan has been completed.

Customer: replied 5 years ago.
Hi, thanks. I need a clarification in Response 2. You're saying that if I were to qualify for a Chapter 13 BK, the marital property debt would be discharged? The ex will no doubt fight this....
Expert:  Phillips Esq. replied 5 years ago.

Hi, thanks. I need a clarification in Response 2. You're saying that if I were to qualify for a Chapter 13 BK, the marital property debt would be discharged? The ex will no doubt fight this....

Response: Actually no. Any property settlement against you would not be dischargeable in bankruptcy. You would still owe the debt to your spouse regardless of your bankruptcy filing unless you reach an agreement to pay the debt off through your Chapter 13 plan. This would be a regular Chapter 13 Discharge and not Hardship Chapter 13 Discharge as previously explained:


"Any Judgment regarding marital property settlement would not be dischargeable in both Chapter 7 Discharge and Chapter 13 Hardship Discharge. A Hardship Discharge is where a Chapter 13 plan is not complete due to financial hardship of the debtor and the Court still grants the debtor a Discharge as if the plan has been completed. "

Customer: replied 5 years ago.

sorry. not quite clear. Maybe it's just the conjunctions? If I were to rephrase your answer as ....

 

"Any Judgment regarding marital property settlement would not be dichargeable in EITHER Chapter 7 Discharge OR Chapter 13 Hardship Discharge."...

 

... would that also mean the same thing as the word of your answer?

 

Finally (I give tips, by the way....) If I lost my job or got sick long-term then would it be possible under either 7 or 13 to discharge the debt under Hardship Discharge? Thanks.

Expert:  Phillips Esq. replied 5 years ago.

Sorry. not quite clear. Maybe it's just the conjunctions?

Response 1: No need for an apology. I am here to clarify. I will word it differently this time. Let me know if you still need clarification.

If I were to rephrase your answer as ....

"Any Judgment regarding marital property settlement would not be dichargeable in EITHER Chapter 7 Discharge OR Chapter 13 Hardship Discharge."...

... would that also mean the same thing as the word of your answer?


Response 2: Generally, marital property settlement cannot be discharged in bankruptcy. It cannot be discharged in Chapter 7 and Chapter 13. However, it can be discharged in a Chapter 13 case only if you pay off the Judgment at the completion of your Chapter 13 plan.


Finally (I give tips, by the way....) If I lost my job or got sick long-term then would it be possible under either 7 or 13 to discharge the debt under Hardship Discharge?


Response 2: Unfortunately no. Marital property settlement can be discharged in a Chapter 13 case only if the Chapter 13 plan is completed. Otherwise, no. Marital property settlement can NEVER be discharged in a Chapter 7 case. See 11 U.S.C. Section 523 (a)(15).

Phillips Esq. and other Bankruptcy Law Specialists are ready to help you
Customer: replied 5 years ago.
excellent; thanks. it appears only death will do it! lol
Expert:  Phillips Esq. replied 5 years ago.
You are quite Welcome!

All the best,