Since Colorado is not a community property state your status will not be affected if your husband files a bankruptcy. Your property will be protected and your credit score will not suffer. If your husband files a bankruptcy it might be possible to wipe out the IRS debt, depending on what type of tax he owes. If his car is heavily financed then it will probably be considered an exempt asset so he will be able to keep it. What I am wondering about is the sale of his house. Did he make much of a profit? What did he do with the proceeds? Your husband should contact a bankruptcy attorney and consult with him to see if he qualifies for a chapter 7 or maybe a chapter 13. The first consultation is usually free.
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.
If the IRS debt is due to income taxes from the 2008 and 2009 tax years as you mentioned, the taxes were filed timely, and the IRS has not filed a lien against your husband, then the past due IRS debt could be dischargeable. If you and your husband have no joint debt, the bankruptcy could have little to no effect on you, though your income would have to be "included" to determine what type of Bankruptcy he could file.
If the vehicle is underwater, in a Chapter 7, you could simply reaffirm the vehicle. In a Chapter 13, it may be possible to reduce the amount owed on the vehicle down to market value, contingent on a few factors.
It's important to discuss this with an attorney, who will check to see if the IRS has filed a tax lien against your husband.
Up front Colorado Revised Statute 14-10-113 defines marital property as any property which either spouse acquires during their marriage, except for property acquired by gift, inheritance or property excluded by a prenuptial agreement. Pretty much the same as most states do, since title means nothing as between spouses. But it ends there.
Colorado is an "equity" state but a divorce action does not presume an equal division as an equitable distribution or community property state may begin the process. Its divided based on equity and fairness not equality in division of assets.
Absent a divorce, your husband's premarital debts are treated as separate under Colorado law.
Now this is another question that has an "it depends" answer because a few more pieces have to fit into this puzzle.
You write that he owes the IRS 25k from 2008 and 2009. The questions then remains, are these from returns that were actually filed? What are they owed for? Income or withholding taxes? Did the IRS impute this and file a return for him? Or were these returns he voluntarily filed? Was there any fraudulent attempt by him to avoid payment of taxes?
Now comes the timing issue. The "statute of limitations" in a bankruptcy for the IRS to enforce a tax debt and by that I mean file a lien, a levy or garnishment or impose the liability itself is 3 years from the date the tax returns were filed and the disputed taxes were voluntarily reported in the returns. Or if the levy was instituted, or garnishments began, that might be the start date. Typically a bankruptcy lawyer will time the bankruptcy 3 plus years beyond the latest reasonable date.
The filing date is important because some people get extensions of time to file returns. Its when they are filed, that's the 'start' date. Then you count 3 years and add some extra days for good measure from that date, and that is going to be the date that you file the Ch. 7 bankruptcy.
Its extremely vital that you know when those 2008 and 2009 returns were filed, as in precise date. And its extremely vital that he filed them, not the IRS for him. And that the disputed taxes that are owed are reported in the returns by him. If there are other dates, then those may be the start dates if the IRS imputed income and taxes. Remember its the latest reasonable date, not the day the taxes might have come due.
If you have that, then yes, he can file a Ch. 7 and chances are pretty good under the right circumstances, he will be discharged.
Your husband should hire a seasoned bankruptcy lawyer to file this bankruptcy for him. Discharging taxes in bankruptcy is simple in concept, not so easy to understand in practice.
Remember the government gets every advantage in the bankruptcy court. So you have to account for every possible date that starts the clock ticking and file 3 years plus beyond that date.
Finally there's another point. Since the IRS is a priority creditor, it is not obligated to file a claim in a no-asset bankruptcy case, and if they are a lien creditor, they don't have to either. They can wait until after the discharge and then begin levying on any tax amounts due that did not fall within the 3 year period. You may not realize it until after discharge. So again timing is extremely important.
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Sounds like you should have a consultation with an attorney, you have a lot of questions. As to discharging the income taxes, probably. If the taxes were from 2008 and 2009, and if he filed the tax returns, then those taxes can probably be discharged bankruptcy. However, an attorney experienced in discharging income tax debt would need to review his IRS Account Transcripts. I happen to be one of those attorneys experienced in discharging income tax in bankruptcy.
If it's income taxes and the IRS has not alleged fraud or negligence it is possible to discharge. However, there are very specific rules as to when income taxes may be discharged. If instead he had a small business and this is some other tax, then it's probably not going to be dischargeable. You should definitely speak with a bankruptcy attorney that understands the tax rules.
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