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My husband and I currently seperated and I I have to file bankruptcy. Can I file before we are divorced or should I wait until

Tampa, FL |

the divorce is final. Also, im on the deed of the mortgage but not the note. Do I include this in bankruptcy to cover me should he dafault

Attorney Answers 6

Posted

Your question is different from your comment below. Have you gone through divorce proceedings already because you said it is final? Under present bankruptcy law, you need to list all assets which you own. If your name is on the deed, then you are considered partial owner of the property. You would have to include a copy of your divorce paperwork to let the judge know how the assets were to be distributed.

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Posted

You can file bankruptcy whether you are single, separated or divorced. The more important question is when you should file. Alas, you have not provided enough information that would let me address that important question which relates to whether you qualify to file or not. If your spouse also wants to file bankruptcy, you might want to jointly consult an attorney for advice. Hope this perspective helps!

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Posted

It might make the divorce settlement go easier if you have no debt.

Be sure to designate "best answer." If you live in Oregon, you may call me for more detailed advice, 503-650-9662. Please be aware that each answer on this website is based upon the facts, or lack thereof, provided in the question. To be sure you get complete and comprehensive answers, based upon the totality of your situation, contact a local attorney who specializes in the area of law that involves your legal problem. Diane L. Gruber has been practicing law in Oregon for 26 years, specializing in family law, bankruptcy, estate planning and probate. Note: Diane L. Gruber does not represent you until a written fee agreement has been signed by you and Diane L. Gruber, and the fee listed in the agreement has been paid.

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Posted

You need to be careful about filing bankruptcy in relation to a divorce. I would recommend speaking to a local bankruptcy attorney. My answer is based on MN law.

If you file before divorce you run the risk of having marital debt reassigned to you by the divorce decree. Your liability to the creditor will be discharged, but if the creditor goes after your ex-husband he can have the decree enforced to make you pay for the debt that was assigned to you.

If you file after the divorce, debt that was assigned to you by the decree can become nondischargeable. The assignment and repayment of marital debts can be considered to be a domestic support obligation.

If your debts are relatively separate, you would probably be okay filing by yourself before divorce. Otherwise, it may be best for you to file jointly, or both separately before getting a divorced. You should consult both a bankruptcy attorney and a family law attorney in order to determine what is best for you.

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You cannot rely upon the generalized answers you will receive here because the strategies involved in determining whether to file before or after a divorce is final require analysis of detailed financial information of both spouses. Generally, one should file while married in the absence of joint unsecured debt and the presence of assets owned as tenants-by-entireties. If joint unsecured debt exists, the strategy will become more complicated depending upon the availability of exemptions. The availability of exemptions will depend, in part, upon your interest in the homestead and what you intend to do with it, whether or not there is equity and whether or not you will claim the homestead exemption or would be better off with the enhanced wildcard available in the absence of a homestead exemption.

If you did not sign the promissory note associated with the home mortgage then you have no liability to list in your bankruptcy.

Bottom line, call a qualified bankruptcy lawyer for a full consultation.

Posting questions anonymously and receiving general answers do not substitute for consulting with an attorney licensed to practice in the jurisdiction in which you live. Answers posted here by Kevin C Gleason are only intended for general education of the public on legal matters. Please consult a qualified professional before deciding what to do about your situation.

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Posted

Bankruptcy and Divorce go hand in hand. It is one of my Big 4 reasons that people file. There is kind of something that needs to be done when they are done together but it would take me way to long to write out. In fact, I usually draw a picture and that makes the explanation easier. If you feel like coming down to St. Pete., I'd be happy to explain it to you. If you have a divorce lawyer, he/she has probably already had this situation and knows what to do. If not, give my office a call at 727 321-3433 and set a free consultation.

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