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.
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.
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.
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.
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).
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.
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.
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).
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. \
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.
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.
Creditors have the right to pursue whatever your current assets are, including your current wages.
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.
So, the law does protect 75 % of your wages at any one time.
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.
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.
In Chicago, on the north side of the city (although a move to the suburbs is always a possibility).
Which suburb are you from?
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.
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.
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:
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).