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feeling helples · Oct 16, 2009, 11:40 AM

Can anyone give me some info on this matter. Just filed chapter 13 with my husband and the hearing is coming up shortly. We are separated. When we filed for bankruptcy, we were separated. However, he wanted to file as married and work on the marriage after the bankruptcy. Well, we are still separated and I have no clue what is going to come down the road. Our wages are going to be garnished at 50/50. Our mortgage, car, and the debt we have to pay back will be garnished from both of our checks. My question is, is he still responsible to pay for the mortgage even though he is not living in the home. He hasn't changed his address or filed for legal separation or anything. In addition, is there anything he can do legally to have what is going to be garnished from his wages changed? Please, only answer if you know something on this matter or have had a similar situation. Thanks

JudyKayTee · Oct 16, 2009, 12:02 PM

Before anyone answers this - if you filed as married (which, of course, you are) but did NOT answer the separation question with "yes," that's misrepresenting your situatiion and it's Bankruptcy fraud. That's a serious charge, a Federal felony. You cannot hold your situation out to be one circumstance when, in fact, it is another.

Was the Attorney who handled the filing aware of the separation?

Also - please don't attempt to limit who answers or the manner in which they answer. I do notice you are answering other people's bankruptcy questions on this same subject, using your experience as part of that advice - ? https://www.askmehelpdesk.com/divorc...cy-187172.html

You need to consult with an Attorney - now.

Fr_Chuck · Oct 16, 2009, 01:30 PM

The federal court ruling on bankruptcy order will hold over the civil divorce court

In divorce court, you can fight as to who should be paying for what and what happens with the house.

Sounds like time to modify your chapter 13 or even turn it over to a 7 and get done with it

feeling helples · Oct 16, 2009, 01:56 PM

Originally Posted by Fr_Chuck

The federal court ruling on bankruptcy order will hold over the civil divorce court

In divorce court, you can fight as to who should be paying for what and what happens with the house.

Sounds like time to modify your chapter 13 or even turn it over to a 7 and get done with it

So, are you saying he is obligated to pay until he gets an attorney and it goes into a divorce?

JudyKayTee · Oct 16, 2009, 02:02 PM

At this moment he is "responsible" for paying for anything he wants to pay for. If he DOESN'T pay the mortgage you can address that as part of the divorce but at this moment in time you have no means to force him to pay.

Again - you need an Attorney both to discuss bankruptcy fraud AND this situation.

feeling helples · Oct 16, 2009, 02:19 PM

Originally Posted by JudyKayTee

At this moment he is "responsible" for paying for anything he wants to pay for. If he DOESN'T pay the mortgage you can address that as part of the divorce but at this moment in time you have no means to force him to pay.

Again - you need an Attorney both to discuss bankruptcy fraud AND this situation.

There was no "separation" question to answer when we signed the bankruptcy papers. When I discussed this with out attorney, she said that if we were to divorce, she could not represent us anymore because of conflict of interest. She is aware of the separation, but my husband and I have not discussed divorce. We may in fact end up working on the marriage. I don't know. But divorce has not been discussed between the two of us. I am just asking if it would come to that down the road

feeling helples · Oct 16, 2009, 02:21 PM

Originally Posted by JudyKayTee

At this moment he is "responsible" for paying for anything he wants to pay for. If he DOESN'T pay the mortgage you can address that as part of the divorce but at this moment in time you have no means to force him to pay.

Again - you need an Attorney both to discuss bankruptcy fraud AND this situation.

In addition, how can you say I can't force him to pay what he doesn't want to pay when in fact his wages are going to be garnished as our mine. The documents have already been signed by the judge and sent to our employers to start garnishing the wages.

What I am asking is what is his recourse down the road? I already know he is going to be paying for the time being.

JudyKayTee · Oct 16, 2009, 02:32 PM

You can't force him to pay what he does not willingly want to pay - he is not paying this willingly. The Court is - apparently - forcing him to pay it. That's a totally different scenario.

What is his recourse? Back out of the agreement and attempt to file straight bankruptcy.

I don't understand how the agreement to pay has gone into effect when there has been no hearing.

feeling helples · Oct 16, 2009, 02:42 PM

Originally Posted by feeling helples

What do you mean he is not paying this willingly? He signed the bankruptcy papers. If he didn;t want to file, he shouldn't have signed the papers.

If you are familar with bankruptcy, then you would know that the first payment to the trustee is due within 30 days of the filing. In most states, your wages are garnished unless you are self employed. He has no choice but to pay at this point. Like I said, the judge signed the garnishment papers. He can;t go to our company and say don't take the money out. He has no choice.

I am asking for a qualified answer by someone who knows something about bankruptcy and divorce to find out what his recourse is down the road if we decide to file for divorce. I know he has to pay right now. He has no choice! He signed the papers.

May I ask, what is your job? Attorney? Are you qualified to answer these questions or is this just your opinion?

And what do you mean he can back and file straight bankruptcy? That is what we are doing. What do you think we are doing?

JudyKayTee · Oct 17, 2009, 06:50 AM

Originally Posted by feeling helples

And what do you mean he can back and file straight bankruptcy? That is what we are doing. What do you think we are doing?

I think you don't know what you are doing.

You did NOT file "straight bankruptcy" if you filed a Chapter 13. A Chapter 13 is a payback situation, not a "wipe out" situation - in layman's terms.

You think your debts are going to be wiped out... but you are making payments? Did no one explain this to you?

Here's the information:

"Chapter 13 bankruptcy, sometimes called reorganization bankruptcy, is quite different from Chapter 7 bankruptcy. In a Chapter 7 bankruptcy, most of your debts are wiped out; in exchange, you must relinquish any property that isn't exempt from seizure by your creditors. In a Chapter 13 bankruptcy, you don't have to hand over any property, but you must use your income to pay some or all of what you owe to your creditors over time -- from three to five years, depending on the size of your debts and income."

An Overview of Chapter 13 Bankruptcy - Free Legal Information - Nolo

Yes, you should most definitely NOT be giving other people bankruptcy and/or divorce advice.

By the way, FrChuck gave you the same advice. I don't see you jumping all over him and demanding his credentials.

I would also be concerned about this: "Your bankruptcy papers are signed under penalty of perjury, so you are swearing that everything in them is true" because it appears that you hid the "facts" of your separation.

And, again, to legally change the agreement which he signed he can file a Chapter 7 - and take you right along with him.

feeling helples · Oct 17, 2009, 08:38 AM

Originally Posted by JudyKayTee

I think you don't know what you are doing.

You did NOT file "straight bankruptcy" if you filed a Chapter 13. A Chapter 13 is a payback situation, not a "wipe out" situation - in layman's terms.

You think your debts are going to be wiped out ... but you are making payments? Did no one explain this to you?

Here's the information:

"Chapter 13 bankruptcy, sometimes called reorganization bankruptcy, is quite different from Chapter 7 bankruptcy. In a Chapter 7 bankruptcy, most of your debts are wiped out; in exchange, you must relinquish any property that isn't exempt from seizure by your creditors. In a Chapter 13 bankruptcy, you don't have to hand over any property, but you must use your income to pay some or all of what you owe to your creditors over time -- from three to five years, depending on the size of your debts and income."

An Overview of Chapter 13 Bankruptcy - Free Legal Information - Nolo

Yes, you should most definitely NOT be giving other people bankruptcy and/or divorce advice.

By the way, FrChuck gave you the same advice. I don't see you jumping all over him and demanding his credentials.

I would also be concerned about this: "Your bankruptcy papers are signed under penalty of perjury, so you are swearing that everything in them is true" because it appears that you hid the "facts" of your separation.

And, again, to legally change the agreement which he signed he can file a Chapter 7 - and take you right along with him.

No, we didn't hide our separation. Our attorney was told. We can not file chap 7 because our income is to high. Our income individually would be to high as well. Most people can't file chap 7 with the new bankruptcy laws. Most are converted to 13.

Fr_Chuck · Oct 17, 2009, 09:23 AM

First the "garnishment' is not a required but he is allowing it, He may go back and withdraw from the entire bankruptcy if he wants,

Also even if divorce courts orders him to pay for something, if he does not, all you can do is go back to divorce court but the debtor can still come after you.

He can also ask to withdraw from the bankruptcy, go to individual and change to 7

JudyKayTee · Oct 17, 2009, 10:08 AM

Originally Posted by feeling helples

No, we didn't hide our separation. Our attorney was told. We can not file chap 7 because our income is to high. Our income individually would be to high as well. Most people can;t file chap 7 with the new bankruptcy laws. Most are converted to 13.

Did the papers you signed under oath state that you were "seperated"? It doesn't matter what you told the Attorney. What matters is the papers that you signed.

Maybe your Attorney committed malpractice and/or bankruptcy fraud. Maybe he/she didn't. But that's not the question - the question is what did YOU sign?

Why aren't you asking the Attorney for advice now?