We both have separate lawsuit, on same people. He needs 703, for exempts, I am not filing, but I am concerned, once trustee finds out. Then they will try t get my PI Lawsuit, because I have sign a wavier, Then I can not use ca 704, t cover p I lawsuit! I am injured, cannot work, we depend on his income. The amount of my case unknown?
Could be high!
How long is pending case? Before I can file 704?
You need to discuss with an experienced CA Bankruptcy Attorney first. CA is also a community property state and thus all assets that are community and any separate property of the filing spouse are part of the estate. But other issues and facts can gravely affect your case so I will point those out next for you also.
You need and want to enjoy your fresh start also. But the most important thing is to meet with an attorney as you asking this question means you have not. You care about 2 goals: keeping everything you have equity in and discharging all your debts. If you don't have any of the exceptions to discharge you will obtain that goal; most exceptions are set forth in 11 USC. 523 (Google it) like child support, some income taxes, traffic (in a ch 7) and criminal fines , and presumption of student loans. But some debts are dischargeable in a ch 13 but NOT in a ch 7 so you want to make sure and your attorney will discuss any such types with you also!
Your exemptions depend on what state you have lived in in the last 2 years and thus if in your state, then your states exemptions will apply. Most persons filing keep everything they own but your attorney will confirm that with you when they learn everything you own and the equity thereof!
Some secured debts like homes, vehicles, other secured debts an attorney will discuss your options on also as you must list any debts; but that does not mean you will lose them unless you have too much equity or are in default on paying for them! Discuss those options if they apply with your attorney too.
But other issues can arise that can greatly harm your case. Just one example: If you paid back a relative $3,000 11 months ago and now file bankruptcy next week, the trustee can SUE that relative to retrieve that $3,000 (under what is called a preference) for the benefit of the bankruptcy estate. As a result, most attorneys don't charge to meet with them the first meeting so meet with one no matter what.
Many great attorneys can be found right here on AVVO in your state so look, call, and meet one as soon as you can.
You should also want to know when to file: is there an advantage of waiting versus filing now and who should you pay between now and then! Good luck and enjoy your later fresh start.
There is a very high chance the trustee could take over your PI lawsuit. If the injury occurred when you were married then the lawsuit will likely be deemed community property and the trustee could prosecute the case and take part of the settlement to satisfy your husband's creditors. I am not saying this is a guarantee to happen as maybe the trustee will not see much merit in the lawsuit and may not want to take it over. You or your husband definitely need to seek a bankruptcy attorney for representation to make sure the lawsuit is protected, if possible, or possibly advise against filing bankruptcy at this time, if appropriate. I hope this helps.
The information provided herein is general information only and not legal advice. The information provided herein does not create an attorney client relationship and is not a substitute for having a consultation with an attorney. It is important to have a consultation with an attorney as the information provided in this forum is limited and cannot possibly cover all potential issues in a given situation
Unfortunately, this is not a question that can be answered "yes" or "no" under the circumstances. The claim CAN be separate property, but it is almost certainly a community property claim. However, there are statutes that define which party has the right to the actual proceeds, despite the claim being community.
This is going to require not only an experienced bankruptcy attorney, but consultation with a good family law attorney who is willing to research the case law about those statutes. Jumping into a chapter 7 without excellent legal advice and representation is asking for trouble.
You also need to have a good discussion with a bankruptcy attorney about the language and effect of the various exemption statutes and apply them to your exact situation.
Disclaimer: This answer does not constitute legal advice. I am admitted to practice in the State of California and the Federal District Courts in the Eastern, Northern, Central and Southern Districts of California only. My experience is in those jurisdictions only. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. In reading any advice or opinion given you agree that I do not have all or the facts so that any statement here may not be complete or fully accurate. You must consult an attorney in your locale and make sure that they are fully informed of your situation and the facts of your case before you act on any of this advice. You should not rely on this advice alone and nothing in these communications creates an attorney-client relationship.
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