Skip to main content

What about bankruptcy?

Commerce Twp, MI |
Filed under: Divorce

When I married my husband has bad credit. Everything including the new house is in my name. He would'nt pay his portion of the bills so I alone filed for bankruptcy. If I decided to get divorced would I alone have to continue to pay and who gets the house?

Attorney Answers 5

Posted

My information suggests that you may be entitled to a Homestead Exemption. In Chapter 7 bankruptcy, you must turn over all nonexempt assets to the bankruptcy trustee who will sell them and divide the proceeds amongst your creditors. In return, most or all of your debts are discharged. Property that is exempt by state or federal law, however, does not go to the trustee -- you get to keep it. That means if your home value is covered by the homestead exemption that applies in your case, you can keep your home. Each state has its own set of exemption laws (California has two sets). Some states allow bankruptcy filers to use the federal bankruptcy exemptions instead of their state bankruptcy exemptions. To find the applicable bankruptcy exemptions (including the homestead exemption). A few states exempt your home to an unlimited value. Most exempt your home equity up to a certain dollar amount. Some states exempt your home based on lot size or acreage. Several states have no homestead exemption at all.
Many states allow married couples filing a joint petition for bankruptcy to claim twice the amount of the listed homestead exemption. This is called "doubling." In addition, some states have a wildcard exemption -- which means they allow debtors to exempt a certain dollar amount of any property. If your state has a wildcard exemption, you may be able to add it to your homestead exemption.
Domicile Rules for the Homestead Exemption
In order to use your state's homestead exemption, you must have acquired your home in the state where you currently live within 40 months prior to filing for bankruptcy. Otherwise, your homestead exemption is capped at $146,450. This cap does not apply if you bought your home with the proceeds from selling another home in that state.

You must determine if the homestead exemption is large enough to protect the equity in your home. The equity in your home is the difference between your home's value (use current market value) and what you owe to the mortgage holder and all other lienholders. That is, if you were to sell your home, after you paid off the mortgage and lienholders, and subtracted the costs of sale and trustee's commission, would there be anything left over? If the answer is yes, then the trustee is likely to sell your home and use the proceeds to pay your unsecured creditors. However, the trustee will give you the amount of equity that is covered by your homestead exemption.
If the answer is no, then the trustee will not sell your home.
If you are behind in your mortgage payments and cannot catch up quickly, even if your equity is protected, you are likely to lose your home through foreclosure. Because you can pay off a mortgage arrearage in Chapter 13 bankruptcy, you may be able to save your home by filing for Chapter 13 instead.

Some states require you to record a homestead declaration with your county land records office prior to filing for bankruptcy, in order to claim the homestead exemption. To see if your state requires this, check your state's exemption laws. Your homestead exemption will be capped at $146,450 if you have committed certain crimes or engaged in bankruptcy misconduct.
If the bankruptcy trustee is able to eliminate some of the liens on your home, it may free up enough equity to tip the scale -- making it worthwhile to sell your home and distribute the proceeds to your creditors. If you think some of the liens on your home might not have been recorded correctly, check with a local bankruptcy attorney.

Legal disclaimer: I am not your attorney and we have no attorney/client relationship. This response is submitted for informational purposes only. This is not legal advice, nor is it intended to be taken as such. Anyone considering the above referenced response and should always consult directly with an attorney within your jurisdiction before taking any action based on this, or any other information. This information is provided without any cost and therefore is what it is worth. Again this information does not create any privileged attorney/client relationship and you are cautioned about information you convey to any person in a public forum.

Mark as helpful

6 lawyers agree

Posted

Your question is more appropriate for the family law section, as it appears you are asking about how the house will be dealt with in a divorce and not your bankruptcy. Am I correct? The rights your husband would have in your home will depend on the property laws in your state and also the agreement the two of you can come to (or if a trial is needed, what the judge feels is appropriate). I would suggest contacting a family law attorney for more specific assistance. Best of Luck to you.

Mark as helpful

4 lawyers agree

Posted

You definitely would benefit from sitting down and speaking with a family law attorney. She or he can help explain to you your rights and ownership of the house and so forth.The house is worth it, isn't it?

This is general legal information, not intended to apply to your specific case. And I may not be licensed to practice in your particular state. Under Federal Law, I am a debt relief agent.

Mark as helpful

1 lawyer agrees

Posted

I am confused by your question.

You state "I alone filed for bankruptcy." I interpret this as while still married to your husband you filed an individual bankruptcy.

Then you ask "would I alone have to continue to pay?"

Then you ask "who gets the house?"

What are you asking if you will have to pay for? The house? Or, and I am making an assumption here, did you file a chapter 13 and are asking about the payments to the trustee?

If you bought the house while you were married, from income generated by the marriage, I would suspect it is marital property and I would suspect that it will have to be divided in some manner, either through an agreement or by the judge. This division will affect what happens to the house including who is going to pay for it, whether it will be sold, or whatever. Hypothetically speaking, suppose the house is worth $10,000 more than what is owed on it. He has a claim to some of that money. This is an issue that has to be addressed by the judgment of divorce.

Because divorce actions are incredibly fact-intensive, it is virtually impossible to provide any sort of meaningful evaluation of your question related to who will get the house. There is simply not enough information provided to make any kind of educated evaluation of the likely outcome. As such, if you plan to file for divorce I would strongly recommend that you contact a competent divorce or family law attorney to help you navigate this trying period of your life.

Mark as helpful

1 lawyer agrees

Posted

You will need to provide additional information to get a complete answer. What I can tell you is that any asset and any liability accrued during the marriage are subject to division in a divorce proceeding.

Law Office of Jonathan B. Eadie, PLLC
28592 Orchard Lake Rd., Ste. 360
Farmington Hills, MI 48334
248 932-3000
jbelaw@hotmail.com

Mark as helpful

Divorce topics

Top tips from attorneys

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics