Community Property

[Lee0716]

I went and consulted with BK Attorney and am so torn. I am seeking relief from unmanageable unsecured debt I incurred only in my name after our marriage. The attorney is asking that my wife file too even though the debt is only mine. The only joint debt we have is mortgage for our house. He argues that since we are in community property state upon my discharge creditors will go after my spouse for the balance not paid upon discharge. Any one ever filed in community property and was married or have similar experience? will appreciate it. this may cause a rift in my family and even a divorce
Thanks

[despritfreya]

In a community property state each spouse is equally responsible for debt regardless of who signed on the dotted line. There are two exceptions to this rule: 1) loans against real property and 2) personal guarantees for corporate type debt. In those cases, both spouses must sign to bind the community.

If you file bk without your wife, you will obtain a "community discharge". This protects the community so long as you remain married. It does not protect your wife from a law suit whereby a creditor can then collect against her sole & separate property if there is any.

Your wife does not have to file. However, generally I recommend both spouses file unless there is a real reason for one not to file. A "real" reason would be if the non-filing spouse has some sole & separate asset that he/she wishes to keep out of the hands of a bk trustee - such as a right to an inheritance.

Des.

[Lee0716]

Thank you. We have no assets, no money, no inheritance and both of us are recent college graduates in massive separate student loan obligations. Am not protecting anything other than not wishing my spouse to be sued in future for my own credit card debts. The only asset she will have if I get discharged five years from now is just her salary.

[tissa]

I went through the exact same decision except the mortgage is also in my name only the only debt we had joint was one credit card and a motorcycle loan which was almost paid off. We were advised the same thing. After realizing in my case hiding this from him would be worse and not talking it through to save him to the trouble could also make it worse. I talked to him about it. We discussed my debt at length and he was very understanding. In the end we filed Chapter 13 together, he went to all the attorney meetings with me and it's been really good for us. I no longer feel like I have to hide any financial stuff from him, so there's less stress. I know that he wants the Chap 13 to succeed as much as I do and we can lean on each other.

If you file in just your name her income is always taken into consideration so really even if she isn't on the Chap 13 I would advise that you talk to her at length about it cause no mater how you file, it is going to affect her life as much as yours.