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Ellen
Ellen, Attorney
Category: Bankruptcy Law
Satisfied Customers: 36714
Experience:  Bankruptcy Lawyer. Experienced.
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I am a CA resident. Am filing for divorce from my husband of

Customer Question

I am a CA resident. Am filing for divorce from my husband of 20 yrs. Have 15 yr old daughter. I have little to no income. Husband has control of joint financial accounts.   Husband wants to file chapt 7 bankruptcy. How will that impact my daughter's and my welfare?   Should I file for divorce before he declares bankruptcy? He is currently employed.
Submitted: 8 years ago.
Category: Bankruptcy Law
Expert:  Ellen replied 8 years ago.
Hello,


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



With the new Code changes, there is not much of a difference whether he files before or after your divorce. The new bankruptcy code Section 523 (a) (15) protects most marital property settlements from discharge.


Under Section 523 (a) (15), obligations from a divorce to pay support are not dischargable. Property settlements are presumed to be nondischargeable.


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THIS IS FOR INFORMATION ONLY. NO ATTORNEY-CLIENT RELATIONSHIP EXISTS. PLEASE CONSULT A LAWYER IN YOUR STATE FOR LEGAL ADVICE

Customer: replied 8 years ago.
We have 2 properties (one we live in) that we owe more than current mkt value. The only assets we have are my 401K that I had prior to marriage and 2 small 401K accts, 1 for each of us ($ amt are equal). What part do I play legally in the bk if he files bk after I file for divorce? Do I have to file bk also? I have 10K credit card debt personally. All other non real estate debt is my husband's business debt. ( just found out about it 6 weeks ago) Does he have to pay child support and spousal spt until I get on my feet?
Expert:  Ellen replied 8 years ago.

Hello,


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


A Chapter 7 bankruptcy may help with both of your financial problems.

 

A Chapter 7 bankruptcy could discharge (erase) all of the credit card and any other unsecured debt. It could be an opportunity for a fresh financial start.


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. Thus, you will want to consider a joint filing with your spouse prior to divorcing.



After you and your wife work things out, you can move back to Florida.


Your husband would typically be required to pay spousal and child support.


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


Thank you,



THIS IS FOR INFORMATION ONLY. NO ATTORNEY-CLIENT RELATIONSHIP EXISTS. PLEASE CONSULT A LAWYER IN YOUR STATE FOR LEGAL ADVICE

Customer: replied 8 years ago.

I am still not clear about how my husband filing bk would affect me. Our joint assets include the 2 properties, (I am on loan docs for 1 only, deed for both), 1 2007 ford truck,

1 credit card (Ihave never used), and 1 line of credit (5K). All the rest is my husband's business debt. If we are able to get the bank to take the properties w/deed in lieu, my personal debt is down to about 40K. I have to find work, a place to live, sell or find homes for all 200+ varied livestock. I am 54 yrs old with a 15yr old daughter. I am concerned about how I start over with no money, no house, no job (I have been out of the job market for 15 yrs), no credit. I know I am not alone in this, but am trying to be smart. AM I LIABLE FOR MY HUSBAND'S BUSINESS DEBT AFTER I FILE FOR DIVORCE, IF JUST HE FILES BK? Is there any way to protect myself from BK? We live in California and will remain in California post divorce.

Expert:  Ellen replied 8 years ago.
Hello,


You are not liable for your husband's business debt or anyof his other debt after he files bankruptcy unless you co-signed for the debt.



Thank you,



THIS IS FOR INFORMATION ONLY. NO ATTORNEY-CLIENT RELATIONSHIP EXISTS. PLEASE CONSULT A LAWYER IN YOUR STATE FOR LEGAL ADVICE

Customer: replied 8 years ago.

If we file ch 7 will I loose my 401K, daughter's college fund? Should I cash out now before we file? If I do, is there a penalty?

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