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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Consumer Protection Law
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Experience:  Lawyer
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Hello, My wife and I divorced several years ago. In our divorce

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Hello, My wife and I divorced several years ago. In our divorce agreement, I promised to settle her delinquent credit card accounts. At first I did not have the money to pay them off. Recently I had some more money and attempted to settle her accounts but the collection agency wouldn't speak to me without her authorization. I facebooked messaged her and emailed her to please contact collection agency and give me authorization, but she has ignored me.

Bu here is the bigger problem and the essence of my question. She promised to pay off her private student loans I had cosigned. It amounts to 80k dollars. She has since defaulted on the loans and the collections agency are now contacting me and my family. My family wants me to sue for breach of the agreement. My question (in several parts)

Can and should I sue her now if no money has been taken from me yet?
If she has no money (which I believe is the case) is it still worth suing her?
What legal steps can I take to protect myself for getting my bank account seized?
If the credit card debt has been written off or reduced into a settlement offer, could she counter sue full the original amount?

My name is XXXXX XXXXX I'd be happy to answer your questions today. I'm sorry to hear that this happened.

1. If the divorce decree states that she would pay the loans, and she hasn't, she is in contempt of court. You could get an order that she is in contempt and punishing her for not paying, but it's not a separate lawsuit. It goes back to the divorce court judge. If the decree doesn't require her to pay, then you can only sue once you are legally harmed, which is after you end up paying money to the student loan company. A suit now would be premature.

2. It depends. If she doesn't have the ability to pay, the judge won't hold her in contempt of court. Judgments are good for many years, though, and they can be renewed, so if she is ever likely to have any money, you may be able to collect at some point.

3. Since you co-signed the loan, as between you and the loan company, there is unfortunately not anything that you can do.

4. She could try to do a counterpettion for contempt, to which you could produce evidence that you were trying to pay but needed her assistance and she refused to provide it. That should defeat her petition, as far as fines or other sanctions. The judge could order her to cooperate, and then give you additional time to pay.

The other option is to file a Motion to Modify Divorce Decree, explaining the situation to the judge and asking that you be allowed to put the money you were to pay on the credit cards on the loan instead.

If you have any questions or concerns about what I've written, please reply so that I may address them. It's important to me that you are 100% satisfied with the service I provide. Otherwise, please rate my service positively so that I get credit for answering your question. Thank you.
Customer: replied 4 years ago.

Hi, I think i understand, but


1. I don't have 80k to give the student loan companies. If they sue me, what would I do, sue her?


2. What is involved in motion to modify the divorce decree?


3. If the student loan companies sue me, what can they legally do to me? What can they take away property wise? What else can they do?


Thank you. You have been very helpful thus far. I will rate you positively. :)

1. Yes. You'd be able to get a judgment for any monies you had to pay them. However, as you noted, that's not worth a lot if there's no way to collect from her.

2. All you have to do is say what the decree currently says, explain why it's not working (especially since you need her cooperation and she's not giving it) and ask that he change it. Then, attach a copy of the judgment so the judge doesn't have to go looking for it. The court actually has forms for modification on their website.

3. In Massachusetts, they can put a lien on your house and wait for you to sell it, but there's a lot of protection that would stop them from foreclosing on your primary residence unless you have a significant amount of equity. They could seize your tax return if these are federal student loans, or levy your bank account (including joint accounts) if they aren't. MA law also allows them to garnish 15% of your post-tax wages, as long as you make at least 50 times the minimum wage. G. L. c. 246, Section 28. If you make less than 50 times the minimum wage, your wages are exempt.
Customer: replied 4 years ago.

Hi, Thank you again. Sorry to keep asking follow up questions.


1. They are private loans, not federal. How can they levy my bank account? What is the process like? How much advance notice will I have? can they take everything?


2. We were divorced in MA. But now she lives in VA and I actually live outside the US, but still have a US bank account with money in it. Could they stop me from say buying a house when i come back to the states? Thank you again, you have been great. The best expert I've ever used, and i have used quite a few.....

I'm happy to answer follow-up questions for you.

1. With private loans, they need a judgment first. You do not get advance notice - that would defeat the purpose, because if someone knows a levy it coming, they'll withdraw the money first. You'll know about the judgment, because they have to sue, but you won't know about the levy. They'll just send a notice to the bank, the bank will freeze the account, and they'll withdraw all available funds and send them to the loan company. The bank has no ability to refuse to do this and is not allowed to tell accountholders until after the levy is in place. They will take whatever is in the account, and can do it more than once.

2. A judgment can hurt your credit, which can make it more difficult to get a loan to buy a house. They can't per se prevent a house from being purchased, but depending on what state you wind up in and whether you are living in the house, they might be able to put a lien on it and take the property. And, if you happen to have enough money to buy a house sitting in your account when they levy it, they'll take everything up to the $80k owed.
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