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A.J.
A.J., Attorney
Category: Bankruptcy Law
Satisfied Customers: 4256
Experience:  Experienced consumer bankruptcy attorney.
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Im legally married right now & live in the house that is jointly

Customer Question

I'm legally married right now & live in the house that is jointly owned.
I'm under the impression that husband has put everything together for dissolution but the debt to asset ratio has put things on hold...meaning the house is tied to other debt (a business loan) & he doesn't want to lose the house to dissolve the marriage.
I've considered personal bankruptcy but would like to have an idea of my options

thank you,
Andi Grecian
Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  A.J. replied 1 year ago.

SavyLawyer :

Hello, and thank you for contacting Just Answer. My name isXXXXX am a bankruptcy law professional and I look forward to answering your question this morning.

SavyLawyer :

An individual bankruptcy is certainly a possibility even prior to the dissolution of a marriage. An individual spouse can file for and receive a discharge of debts in bankruptcy during the marriage, the other spouse does not need to file. The only complicating factor will be that if the marriage is still intact, the other spouse's income will be included when determining whether the filing spouse passes the "means test", which is the test used to determine whether or not an individual may file for chapter 7 bankruptcy.

Customer: I know this is a complicated situation...
Customer: since I wouldn't want to include his income, what options do I have then?
SavyLawyer :

Unfortunately, it really is not a choice, so long as the household is still intact. Once the marriage is dissolved, and expenses are no longer shared, then you would no longer have to include his income in the bankruptcy filing.

SavyLawyer :

Until the "household" is no longer intact, the court may hold you to the household income. The median income for a household of 2 in Florida is approximately $51,760. If your household income is currently higher than that, a chapter 7 may still be available but would require a more nuanced calculation comparing current income to current expenses. So, while a chapter 7 bankruptcy may still be available to you, unfortunately you must include all household income while there still is a household.

SavyLawyer :

In these situations, filing for bankruptcy jointly is often a better option because it cleanly deals with debts prior to the divorce for both parties. However, there are often situations that prevent this (such as trying to keep a property that is tied to non-consumer debts).

Customer: i have always been a respectable manager of the finances. All credit cards that have my name list his income as the means to repay. we have creditors calling daily...he is an extremely poor money manager...unfortunately because I'm the spouse & my name is XXXXX XXXXX much of the debt, my credit is trash...so is there anything I can do while I am still in the marriage?
Customer: hes the one that cares about keeping the house, if we split I could walk away only feeling that there's a lot of reminders there I don't want to be surrounded by
SavyLawyer :

I understand, and that is certainly an unfortunate situation to be dealing with. All too often our credit can be hurt by other people's poor decision making. While still in the marriage, as I said above, a chapter 7 is still an option either (a) if your household income is below the median income for a household of 2 in Florida, or (b) you pass the means test of household income versus necessary expenses. If, however, you do not pass the means test in one of these two ways, then a chapter 7 is likely off the table at least until the marriage is dissolved (Assuming that is the path you choose). A chapter 13 may be an option, if for no other reason than to get creditors to stop calling, but under a chapter 13 you would need to be able to make regular payments towards a payment plan sanctioned by the court.

SavyLawyer :

Ultimately, while still in the marriage his income is going to be included in any calculation made in determining eligibility for different types of bankruptcy. The advantage of a chapter 13 would be that it would still stop the creditor calls, but the downside is that you have to be able to demonstrate to the court that you can make some type of regular payment on the debts (Which would be all bundled in to one through the bankruptcy trustee). Generally this payment is significantly lower than what you would be paying on the individual debts, but it is still going to be a large portion of the household's monthly income. The goal is for the debts to be at least partially repaid while still leaving the debtors enough to live on.

SavyLawyer :

If you did pursue a chapter 13, if the dissolution of marriage does occur, it could then be changed to a chapter 7. This is allowed when a significant change of income happens (Such as the dissolution of marriage, where the "household" is cut by half).

Customer: I have recently secured a good job, is there a possibility that even tho I opened a separate account for myself, my wages could be garnished or accessed in any way?
SavyLawyer :

Your wages can only be "garnished" if a creditor for a debt that you have a legal obligation to repay (meaning either the debt is in your name, or you in some way agreed to be responsible for it) files suit against you and wins a judgment. At that point, the creditor can seek to garnish wages. \

SavyLawyer :

Only sole or joint debts put you at risk for garnishment of wages (ie, any debt that has your name on it). Any debts that are solely your spouse's would not threaten your wages.

Customer: even if the debt was made listing husbands income?
SavyLawyer :

Well, yes. The issue of liability for a debt is not whose income was listed, but who incurred the debt and agreed to pay it back. So, for example, for a credit card with your name on it, where you are accruing the debt, you would be liable for that debt, regardless of what income information was used when the credit was originally granted. So, if the debt is yours, and you currently have a job, there is a potential risk to that income from an unpaid debt even if you did not have that job at the time you initially received the offer of credit.

SavyLawyer :

Creditors have the right to pursue whatever your current assets are, including your current wages.

SavyLawyer :

In Florida, a creditor can garnish up to 25 % of your wages, but only 25 % of your wages can be garnished at one time, even if multiple creditors have wage garnishment orders.

SavyLawyer :

So, the law does protect 75 % of your wages at any one time.

Customer: so what would your recommendation be?
SavyLawyer :

The best that I can do on this site is provide you with information and options available to you, I cannot provide direct legal advice. In a situation such as the one you describe, a chapter 7 bankruptcy certainly has appeal, because it would eliminate the debt and avoid a potential wage garnishment. If a chapter 7 is not currently available because of the household income size, a chapter 13, in which repayment is arranged (again, generally for less than you would otherwise pay), is a good stop gap option until the situation (ie the household) changes and you can look at a converting to a chapter 7.

Customer: you have been very helpful!
SavyLawyer :

I am glad I could be of some help, and wish you the best of luck in whichever path you ultimately take. Let me know if you require any further information. Otherwise, please remember to RATE my answer so that I can receive credit for my work.

Customer: just curious what part of Illinois you are in...we are originally from Chicago suburbs
SavyLawyer :

In Chicago, on the north side of the city (although a move to the suburbs is always a possibility).

SavyLawyer :

Which suburb are you from?

Customer: I grew up in lincolnwood & went to Niles west
SavyLawyer :

Not too far from where we are, we are on the Northwest side of the city (ravenswood area), and I have a few colleagues who live in Lincolnwood.

SavyLawyer :

Small world!

SavyLawyer :

Let me know if you have any additional questions or concerns. Otherwise, I wish you the best of luck in resolving these issues in your favor, and please remember to RATE my answer so that I can receive credit for my work.

Customer: if I wanted to use your service what would I need to do?
SavyLawyer :

While I appreciate the thought, we are not allowed to take referrals from this site, and even so, because this site is informational only you would need an attorney licensed in Florida to assist you. The Florida State Bar Association does have a referral service should you choose to sit down with a bankruptcy attorney on your own. Their service can be reached by phone at:

SavyLawyer :

(800)(NNN) NNN-NNNN/span>

SavyLawyer :

Monday-Friday, 8-5:30.

<span class="JA_chatAuthorName"Customer: O.k. and thank you again
A.J., Attorney
Category: Bankruptcy Law
Satisfied Customers: 4256
Experience: Experienced consumer bankruptcy attorney.
A.J. and other Bankruptcy Law Specialists are ready to help you

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