Is it better for me to wait until I'm divorced to file bankruptcy if my spouse doesn't want to file ? We don't own property .

Asked over 1 year ago - Lakewood, NJ

My debt is all small unsecured cards and 3 unsecured loans I had ( ge money credit , capital one personal loan ) . One judgement , and all charge offs . We filed a chapter 13 10 or 11 years ago but that is already gone from report for over 2 years now . Please advise . Thank you .

Attorney answers (8)

  1. Ksenia V Proskurchenko

    Contributor Level 9

    4

    Lawyers agree

    Answered . An answer to your question depends on many variables. A very important one is whether your spouse lives with you. One of the considerations in filing for bankruptcy is a determination whether the presumption of abuse would arise, and the way to determine it is to look at the annual household income and household size. If your household income for your household size is above the median, additional calculations need to be made. In other words, whether or not you are still married, if your spouse (or ex-spouse) still lives with you, her income may disqualify you from filing a Chapter 7 bankruptcy. This is just one example.

    An experienced attorney will be able to look at your situation as a whole, identify the specific issues in your case, and determine which course of action is right for you. It is possible that the order would not make much difference.

    If you have any further questions, please feel free to contact my office for a free consultation.

    Ksenia V. Proskurchenko, Esq.
    President and Managing Attorney
    PROSKURCHENKO LAW GROUP, LLC
    570 North Broad Street, Suite 13
    Elizabeth, New Jersey 07208
    Main: (973) 321-3040
    Fax: (908) 933-0953
    www.prosklawgroup.com

    THIS ANSWER IS INTENDED FOR GENERAL INFORMATIONAL PURPOSES ONLY. IT SHALL NOT BE CONSTRUED AS LEGAL ADVICE NOR BE... more
  2. Bruce C Truesdale

    Pro

    Contributor Level 12

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    Lawyers agree

    Answered . In determining when to file a bankruptcy case, before your divorce or after your divorce, my colleagues have given you good answers and food for thought. One consideration, Domestic Support obligations are not dischargeable in either Chapter 7 or Chapter 13 bankruptcy cases. However, equitable distribution obligations ARE dischargeable in a Chapter 13 case, only. So, if there is any chance that you will be saddled with an equitable distribution debt in your divorce case YOU may want to wait until AFTER your divorce to file a Chapter 13 case. Speak with your divorce attorney and if necessary, an experienced Chapter 13 practitioner.
    Bruce C. Truesdale

  3. Steven R. Neuner

    Pro

    Contributor Level 9

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    Lawyers agree

    Answered . In most cases it is better to get a divorce wrapped up before filing bankruptcy. This may not always be possible. The interplay of divorce and bankruptcy can be complicated. If you are considering a bankruptcy, now would be a good idea to meet with a qualified bankruptcy lawyer with experience in the family law area as well. Our firm has expertise in both areas, but we are in Marlton, some distance from you.

    The foregoing answer is for informational and educational purposes, not for purposes of legal representation. This... more
  4. Geraldene Sherr Duswalt

    Pro

    Contributor Level 8

    1

    Lawyer agrees

    Answered . The answer depends upon your situation and the status of your divorce. If the debts were joint, and they are divided up i the divorce, then you may not be able to discharge them. If the debts are joint, them your spouse would remain liable for them even after you obtain a discharge. The other question, as pointed out in a prior answer, is your family income and the impact of your spouse's income on your total family income for purposes of the "means test". It is often cheaper to file a joint petition prior to divorce so that you only pay one filing fee and one legal fee, but if your spouse refuses, then that would not be an option. I agree that you should consult with both your divorce attorney and a bankruptcy attorney prior to taking any action.

    Disclaimer: The information you obtain at this answer is not, nor is it intended to be, legal advice. You should... more
  5. Michael S Schwartzberg

    Contributor Level 8

    1

    Lawyer agrees

    Answered . Generally, my recommendation is to file for bankruptcy first if both spouses file together. It's cheapter to file together since it's only for fee for both. Then, during the divorce there won't be any fighting about distribution of the debt and who has to pay for what.

  6. Diane L Gruber

    Pro

    Contributor Level 18

    2

    Lawyers agree

    Answered . If you file before the divorce is final it might make it easier to settle your divorce because there will be fewer debts to fight over. I agree with the previous attorney. Discuss the timing with your divorce attorney. If he/she doesn't handle bankruptcy, get a referral from him and go talk with someone who specializes in bankruptcy. Good luck.

    Be sure to designate "best answer." If you live in Oregon, you may call me for more detailed advice, 503-650-9662.... more
  7. Richard Edmund Hawkins

    Pro

    Contributor Level 16

    2

    Lawyers agree

    Answered . Strange things happen in divorces, and they suddenly go ugly.

    He gets assigned a certain debt, and you another. And then you file 7, and after discharge, he seeks to hold you to pay that debt under the decree, as it's threatening to sue him.

    Or you file 7, but he files 13, and discharges his obligations under the property settlement, while you don't . . .

    If the debt is discharged first, there's nothing to divide in that regard.

    You probably need separate attorneys in the 7, or possibly have your divorce attorneys in place and have them agree on the bankrutpcy attorney.

  8. Dorothy G Bunce

    Pro

    Contributor Level 20

    1

    Lawyer agrees

    Answered . If you qualify to file bankruptcy, it probably doesn't matter one way or another. Hope this perspective helps!

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