My spouse has filed for divorce. He is currently in bankruptcy on a plan to pay off his debts. I am not a party to the BK. However, we purchased a home together post his filing for BK. The title is in both of our names, but the loan is only in my name. As part of the divorce decree, the home will be mine. If he does not file a motion to lift the automatic stay which I understand is required by the Bankruptcy court, what do I need to do or what can I do to protect my home post divorce?
In Texas, a divorce must include the division of property. And since your spouse's separate property, the jointly managed community property, and possibly some or all of your separately managed community property, is under the jurisdiction of the bankruptcy court, the bankruptcy court's "automatic stay" must first be lifted, so that the family court has the power to divide the property between you as part of the divorce.
If you don't do this, your divorce will be "voidable," that is, either you or your spouse could later claim that the divorce was not final, and that you were still married.
Therefore, if your husband won't do it, I would hire an attorney to file a "Motion for Relief from Stay" to obtain the Bankruptcy Court's permission to finalize the divorce. The procedure should take about 30 days.
There is a court filing fee of $150 plus whatever your attorney charges you to prepare the necessary documents, file them with the bankruptcy court, serve copies upon the trustee and other parties in the bankruptcy, and appear in court and ask the Judge to sign the order lifting stay. Your divorce attorney may be able to do this, if he or she does not do this, you can hire a consumer bankruptcy lawyer to do it for you.
Then as part of the divorce, you want the divorce decree to award the property to you, and I would also make sure my divorce attorney prepares a deed from your husband to you, awarding you the property, and make sure that is recorded in the county real property records. And of course follow any and all other instructions given to you by your divorce and/or any attorney that you hire to file the Motion for Relief from Stay. Good luck to you.
You did not specify whether you are current on the mortgage. If you are current, you have nothing to worry about. Everything will remain the same. If you are not current on the mortgage, then the answer will be more complicated.
If you want a division of the assets, you need relief from the bankruptcy court to do it. Otherwise, the divorce court cannot determine that. The divorce, however, can still proceed.
Mr. Goldstein is a Virginia-licensed attorney only. The information is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. Answering this question does not in any way constitute legal representation. Contacting Mitchell Goldstein or the Goldstein Law Group does not constitute legal representation, nor is any information you provide protected by attorney-client privilege until otherwise advised.
If you purchased the home after he began his chapter 13 case, the property is not part of the bankruptcy estate, and I don't believe a motion to lift stay is necessary for him to deed his interest in it to you, unless some vagary of Texas law requires otherwise. Good luck!
The comments above are a general discussion of the topic raised and not intended as actual legal advice