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Hi, My former spouse and I divorced 3 years ago. At the time

Hi, My former spouse and I...
Hi,
My former spouse and I divorced 3 years ago. At the time of the divorce he was to pay all debt that was accrued while we both lived under the same roof, therefore I was not going to receive 1/2 of his 401k. This is in the divorce decree signed off by the judge. At a later date he filed bankruptcy, therefore he no longer had the amt. of debt he was originally to pay. He did not need to file bankruptcy, however I am assuming the latter is mute and nil at this point.
Anyway, I have been considering going back to court and submitting the paperwork asking for some (?) of his 401k since he did not follow the decree. I would very much appreciate your input.
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Answered in 2 minutes by:
4/14/2013
TJ, Esq.
TJ, Esq., Attorney
Category: Bankruptcy Law
Satisfied Customers: 12,473
Experience: JD, MBA
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Hello and thank you for allowing me the opportunity to assist you.

Were you stuck paying those debts that were discharged in your ex's bankruptcy?
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Customer reply replied 4 years ago

No. I know with some credit cards he and the bank came to a settlement.


I am having my credit report repaired and although I only knew of one credit card in my name, apparently there were an additional three that I was unaware. He pd. them as the above, however since they are in my name only, and they are affecting my credit, the only thing I know to do is to see if I can have access to the original signature for the cards.

Hi again. I'm a little confused. My impression was that your ex had the debts discharged in bankruptcy. But it now looks like you're saying that he settled the debts. Can you clarify? I'm sorry to ask more questions from you before answering, but I do think that the answer to my question could affect the outcome.
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Customer reply replied 4 years ago

To my understanding the debts were discharged in bankruptcy. I apologize. The credit cards which were in my name only he did settle with the banks. He told me he was going to settle instead of taking me back to court to try and have me pay. He said he did not think he would win and on top of paying the debt he would have to pay attorney fees. I do not know how bankruptcy works.

Hi again.

Okay, so the debts that were in your name were settled, and the debts in his name were discharged.

If those are the facts, then I'm sorry to say that I strongly doubt that you would have any reason to complain in court. Regardless of how it happened, the end result is the same ... i.e., you are no longer liable for those marital debts. I don't think that the judge will modify the prior decree just because your ex managed to get out of paying each debt in full in order to have them eliminated. Moreover, divorce decrees are not generally modified to redistribute property unless there was a legal error, which doesn't seem to be the case here. If the creditors were going after you for payment, then you would likely have a good reason to ask that your ex be held in contempt, but it doesn't sound like there is any cause for contempt either.

I am truly sorry to give you this bad news, but please understand that it would be unfair to you (and unprofessional of me) to provide you with anything less than an honest response. However, if your concerns were not satisfactorily addressed, then please let me know, and I will be happy to clarify my answer. I do ask that you rate me based upon whether I answered your question, and not based upon whether the answer was good news or bad news. Your positive feedback is greatly appreciated.

Thank you for using our service!
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Customer reply replied 4 years ago

How do I know if the debts were excused? Is this the way bankruptcy works? I do know he is still paying on his student loans. He is still paying on his boat, however I highly doubt this was included. Actually I know he is still paying on the boat because I am able to see on the credit reports while I am having them repaired what he is making pymt. I do not understand why I would not possibly have any rights to the 401k.

Hi again.

The bankruptcy cannot generally discharge student loans. Also, while the boat loan can be discharged, he would have to keep paying the loan in order to keep the boat. Otherwise, the boat would be repossessed.

Domestic support obligations cannot be discharged, and you would have a reasonable argument that he would still be liable to you for any of the debts that he was ordered to pay if you are still obligated to those creditors yourself.

You would not likely have any rights to the 401k because the divorce decree states that you do not have any rights to it. So long as you are not obligated to pay any of the marital debts that your ex was supposed to pay, then he complied with the essence of the divorce decree. Moreover, the divorce decree cannot be modified for this purpose. If I understand you correctly, it sounds like your claim to the 401k is based upon the fact that it appears unfair that your ex got the entire 401k and simultaneously managed to escape the debts without paying them in full. I'm truly sorry to say that I do not believe that the court can or will modify the divorce decree in this situation.

I wish that I had better news for you, but I want to give you an honest answer even if it's not what you want to hear. Please accept my apologies.

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Customer reply replied 4 years ago

Would you please help me understand what you said in paragraph two? I do not understand what you mean by domestic support obligations cannot be dismissed ........if you are still obligated to those creditors yourself.

Customer reply replied 4 years ago
Relist: Incomplete answer.
The screen said I had 36 seconds to wait and then the expert went away and my question was not answered that I had asked of her.
dkennedy
dkennedy, Attorney
Category: Bankruptcy Law
Satisfied Customers: 6,009
Experience: 15+ years experience
Verified

Hello,

The expert that was helping you previously was correct. The judge did not give you any of the 40lK because he let you get out of paying half of the marital debt. Your ex apparently took care of most of the debts through a bankruptcy, but he had a legal right to do so. Bankruptcy does not, however, get a person out of paying alimony, spousal support, or child support. But, you were not ordered to get any of that. It is not good news, but there is little chance that you would have any luck trying to get the 401K because you did not get the bills to pay.

It is also unfortunate that many times divorces adversely affect a person's credit because of the ex spouse. You can write a letter and have it placed in your credit file explaining the situation. Other than that, if you have any follow up questions, please ask. Otherwise, you should accept the previous answer because it is legally correct.

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Customer reply replied 4 years ago
Relist: Other.
As I said last night I had 36 seconds until I was supposed to receive a reply, but then I am unsure what happened. I did not receive the reply when supposedly I only had 36 seconds to wait and no reply explaining to me what happened. I just was hoping someone could help with a reply.
Customer reply replied 4 years ago

I just sent a reply basically asking the same question I had asked the original expert prior to losing them. I know there are different types of bankruptcy. Will someone please answer my question I asked re: bankruptcy? Is all debt wiped away except for instance the student loans and his boat? I do not know how bankruptcy works. Would you please help me understand how bankruptcy works?

Hi again. This is the original attorney who help you last night.

Q: Would you please help me understand what you said in paragraph two? I do not understand what you mean by domestic support obligations cannot be dismissed ........if you are still obligated to those creditors yourself.

A: The Bankruptcy Code, in Section 523, specifically states that domestic support obligations are not dischargeable in bankruptcy. This means that even after a bankruptcy, the debtor is still obligated to pay domestic support obligations. Common domestic support obligations include child support and alimony, but the payment of a marital debt to a third party creditor can also be considered a domestic support obligation. For example, if you and your ex had a credit card in your name, and if the judge in the divorce ordered your ex to pay it, then that would likely be considered a domestic support obligation. This is because his payment to the credit card creditor relieves you of a financial burden. It is important to note two points: (1) You would still be liable to the credit card creditor until the debt is paid in full or settled. The reason is that the judge in the divorce cannot modify your contract with the credit card creditor. The judge can merely order your ex to pay the debt. (2) Your ex could file for bankruptcy and be discharged of his liability to the credit card creditor. However, he would still be liable to you for paying the credit card creditor because the judge's order to pay is a domestic support obligation to you (as stated above). So, in that example, if your ex were to file for bankruptcy and discharge the credit card debt, then the credit card creditor would not be able to sue him for nonpayment. The credit card creditor would be able to sue you for nonpayment. You would be able to demand that the court hold your ex in contempt and to force your ex to pay. But if your ex were to settle the credit card debt for less than what was owed, and the settlement releases you of liability, then that's all that you can ask for because all you were entitled to was relief of that debt. You were not entitled to an amount of money equal to the debt. That is one reason that you cannot now demand part of the 401k. You already got what the judge gave you ... relief of the debts. It doesn't matter whether that relief was received because your ex paid the debts in full, or because he settled for less.

 


Q: Will someone please answer my question I asked re: bankruptcy? Is all debt wiped away except for instance the student loans and his boat?


A: No, not all debt is wiped (or in bankruptcy lingo, "discharged"). There are many types of debts that are not discharged besides student loans. As previously stated, domestic support obligations are not discharged. Debts obtained through fraud are not discharged. Most types of tax debts are not discharged. There are others as well. The boat debt can be discharged, but the lien on the boat cannot be eliminated. This means that the boat creditor could repossess the boat if the loan is not paid, even though the loan itself was discharged. This means that if your ex chooses to walk away from the boat, then he can and the boat creditor cannot sue him. But the boat creditor can repossess the boat, sell it, and apply the proceeds to the unpaid loan. If the proceeds are not enough to payoff the unpaid loan, then the boat creditor is out of luck since your ex would not be liable due to the bankruptcy.

Does this answer your questions about bankruptcy?

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Customer reply replied 4 years ago

If I have been relieved of the debt and he settled with the credit card companies will or can I provide this info. to possibly help repair my credit report if I provide a copy of the divorce decree.


Originally the debt he was to pay was approx. $40,000 dollars. At the time he had approx. $34 to 36,000, therefore the amt. would have been divided in half. If he chose not to tell the truth of how much the boat was worth is this nil at this time.


I had no intention of trying to seek 1/2 of his 401k until he told me two illegal acts he committed. Especially because one of the two is damaging my credit report greatly. Although I have proof and why he chose to tell me I do not know.

Hi again

Q: If I have been relieved of the debt and he settled with the credit card companies will or can I provide this info. to possibly help repair my credit report if I provide a copy of the divorce decree.

A: I'm afraid not. As I mentioned earlier, the judge has no power to alter the contract between you and the creditor. The judge only has the power to order your ex to pay the debt. But if the debt goes unpaid, the creditor can go after you regardless of the divorce decree. Similarly, the creditor can make negative entries on your credit report if it goes unpaid or was paid late or was settled for less.

As for the value of the boat, it is too late to argue over that. The time to argue over the value of the boat was before the judge made the final ruling. These issues cannot be litigated endlessly. They must be argued prior to the judge's final ruling. Once the final ruling is given, it is too late (except that you can appeal within a limited period of time ... generally 30 days ... if the judge made a legal error). I'm sorry to say that it appears that it is too late to argue these issues.
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Customer reply replied 4 years ago

Thank you for your help. I did speak of the actual worth of the boat, however he knew what to say to the mediator (who was actually a judge, overall blessing for me) and to his attorney. Just recently has he admitted the worth of the boat was what I had said. Anyway, water under the bridge. No pun on words.


I am thankful he was required to pay the bank cards. Just sad that I had no knowledge of them, until all was said and done.


Thank you for explaining more in detail about bankruptcy and providing examples. Asking about if I had any rights to his 401k was not an okay, well if (my former husband) did such and such then I am going to try and do such and such. My asking was for possibly having additional funds for my future and our daughter. I am a Christian and God has always taken care of us in many ways, including financially. Although I would like to have additional funds to draw from in the future, when all is said and done I honestly told the truth to he, the mediator, etc. and because I did I have a clear conscious. (Divorce is really sad in so many ways. I trusted him and took my vows very seriously. I had hoped we would have been able to work together on the issues and ask for help. This sadly was not what he wanted. Am I perfect, not in the least. Did I make mistakes and regrets, yes. My heart breaks because as a parent I wish I could have guarded our daughter from the pain of not being a family of three any longer, all of the emotions from her life being turned upside down and now having parents who are


divorced. Kids are resilient, but most parents want to try and protect our children from this ill world. Sadly, we can't protect them from all we wish we could. Anyway, thank you for your help. I will provide feedback.

You are quite welcome. Thank you for using our service!
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Customer reply replied 4 years ago

Today I spoke with several attorney's who work with bankruptcy and family law. According to those I spoke with told me I do have rights to his 401k. They explained, yes he can file bankruptcy and be discharged from the majority of the debt in this case due to having student loans and boat.


However, apparently he cannot be discharged from his responsibility he said he would follow through what the judge ordered. The attorney's shared with me people were doing the same as I explained above, but were not following the order of the judge. Therefore, 5-6 yrs. ago the law was changed to prevent what was happening in the past. If anyone explained this to me I am not aware. Instead I understood the info I was given was inaccurate according to the law having changed. And since the law has changed he is liable and he cannot be discharged.

Hi again.

I stand by my previous answers. I think that you were given misinformation, or at the least the attorneys that you spoke to did not provide thorough explanations since much of what you wrote that they stated is incorrect. However, I am at a disadvantage because I do not know what information you gave those attorneys, nor do I know exactly what they told you.

In any event, I wish you luck in dealing with this situation. If those attorney reviewed the facts and believe that you have a case for the 401k, then you may wish to retain one of them. Take care, and thank you for using our service.
TJ, Esq.
TJ, Esq., Attorney
Category: Bankruptcy Law
Satisfied Customers: 12,473
Experience: JD, MBA
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