Can I file Chapter 13 and husband file 7?

[cinderella]

Could I file a chapter 13 and my husband file a 7?

I am trying to find options to pay back taxes and possibly keep my house, hence the chapter 13. I would want to do a chapter 13 alone because he has a history of unemployment and I am not sure if our marriage would last the 3 5 years. Technically, we qualify for a chapter 7 but If I agree to no longer pay for some of his expenses, maybe I might have a little income left to pay the chapter 13 payments.

What do you think? :

Also, I get an incentive award estimated about $8000 at the beginning of each year. If I do the means test now, it would not include the $8000 I got in January so my income would seem low. I know I may get it next year though. I also have some money 1x I am getting in December for about $8000. Should I discuss this now or when I receive them? The amounts are not definite or guaranteed. I just don't want my payments to spike later on but I also don't want a payment amount based on one time payouts. thanks

[AngelinaCat]

I have never heard of this scenario.

There are many factors to consider: 1. What state are you in? If you are in a community property state and the debt, or at least part of it, came about during the marriage, then what is yours is also his and vice versa. I am not sure about joint-tenancy states, but there may be similar provisions.

In any case, since you are married, the household income will be factored in to which ever chapter you decide to file. If you were legally separated and maintaining separate households, then this might work. But there is this pesky look-back period of six months at least. The look-back can be longer--up to a year or more if the trustee suspects any attempts at abusing the system.

You need to consult with an attorney on this. And if the marriage is shaky enough that you don't think it will survive the three-five years for a 13, perhaps marriage counseling, financial counseling or a divorce attorney first.

It sounds like you have been carrying the load in this and he needs a wakeup call.

Good luck.

[lrprn]

Could I file a chapter 13 and my husband file a 7?

Yes, it's possible to do this depending on the individual circumstances of yours and your husband's finances and which state you live in.

I am trying to find options to pay back taxes and possibly keep my house, hence the chapter 13. I would want to do a chapter 13 alone because he has a history of unemployment and I am not sure if our marriage would last the 3 5 years.

You can't file a Ch 13 unless you show at least $120/month disposable income on the required Means Test and Schedules *and* your creditors will receive at least as much as they would if you filed Ch 7. This means you have to able to make payments over three to five years that will pay your trustee's administration fee, pay off your lawyer in full, and pay off the taxes in full in five years (along with any other things that you haven't mentioned that have to be paid through the plan). Have you talked with any bankruptcy lawyers in your area yet? Most have free initial consultations. Speaking to 3-4 in your area will help sort all this out, plus you'll get a better idea of whether what you want to do is even possible.

It's important to know which state you live in. If it's one of the community property states, then filing separately will get much more complicated because no matter whose name is on a debt, whatever debt happened during the marriage both husband and wife are considered responsible for paying it.

And something you may not be aware of - since you want to file separately, some bankruptcy lawyers will only represent one of you, not both of you - it's seen as a conflict of interest. You may have to hire two lawyers to accomplish filing a 13 and a 7 (if it can even be done).

Also, I get an incentive award estimated about $8000 at the beginning of each year. If I do the means test now, it would not include the $8000 I got in January so my income would seem low. I know I may get it next year though. I also have some money 1x I am getting in December for about $8000. Should I discuss this now or when I receive them?

You are right that the bonus won't count in your income calculation if you file before next Januray. However, I would still discuss this during your free initial consultations with 3-4 experienced bk lawyers in your area. If you file Ch 13, most trustees instruct their filers to notify them about any 'significant increases' in their income while the plan is active. Receiving a large bonus during an active Ch 13 would definitely qualify.

Also when you file, you are asked to include all active financial accounts on your filing forms. Trustees sometimes look these accounts over to find unusual deposits and withdrawals. If your trustee does this, he/she may see the big deposit from last January and ask about it.

An experienced bk lawyer can tell you what the best thing for you to do is in this circumstance.

[AngelinaCat]

Also, I get an incentive award estimated about $8000 at the beginning of each year. If I do the means test now, it would not include the $8000 I got in January so my income would seem low. I know I may get it next year though. I also have some money 1x I am getting in December for about $8000. Should I discuss this now or when I receive them? The amounts are not definite or guaranteed. I just don't want my payments to spike later on but I also don't want a payment amount based on one time payouts. thanks

This last paragraph was posted AFTER I posted my comments. You really need to talk to a BK attorney or several. Most give free consultations.