Do we have to file together? (I'm employed, shes not)

[chp13]

Ok I found this fourm after filing chapter 13, very useful btw. After reading up on here I have a question:

Here's my situatuion: I have have my own debt in my name ($20K, I'm employed) and my wife in her name ($18K, she unemployed), then we have a combined $20K from tax audit and last years tax (I'm head of house hold).

Can she file chapter 7 and me chapter 13? Would the court be looking at my income as hers?

I filed chapter 13 jointly. My 341 meeting is next week for what its worth...

[lrprn]

Since you live in California and California is a community property state, that complicates giving you answers to your questions.

Keep in mind that when filing Ch 13 or 7 in a community property state, it is almost always a good idea to file jointly or file different chapters at the same time. Since generally all debts accrued since the marriage by *either* person belong to both persons in a community property state, if only #1 of a married couple files, then #2 could still owe a significant portion or even all of the debt discharged by #1. Both #1 and #2 have to file jointly or separately at the same time to ensure that neither gets stuck with any unsecured debt or surrendered secured debt to pay after discharge.

You didn't say whether you filed Ch 13 jointly on your own or worked with an experienced CA bk lawyer to do so. Which is it?

Since your 341 is next week, you might as well wait and see how things turn out. You can assess your situation afterwards to decide if the path you are on now or another path is going to work best overall.

[walkthaplank]

It is my understanding in a community property state, that unless you have kept your finances entirely separate, you will have to file jointly.

[irishonyx33]

In a community property state I don't believe there is such thing as "separate finances". WI is a c.p.s. and I am a non filing spouse in a chapter 13 and all of the bills that were in my name only were also included because they were bills that I incurred during the marriage. They are community bills which are included in my husbands 13 and I receive what is known as a phantom discharge.

[chp13]

Yes we have filed jointly, chapter 13. We used Pricelaw Group. From what I've read there a run of the mill bk firm..

[walkthaplank]

In a community property state I don't believe there is such thing as "separate finances". WI is a c.p.s. and I am a non filing spouse in a chapter 13 and all of the bills that were in my name only were also included because they were bills that I incurred during the marriage. They are community bills which are included in my husbands 13 and I receive what is known as a phantom discharge.

I know there is a way to have completely separate finances even in a community property state, but it involves a pre-nup and keeping everything completely separate. Good luck with your case chp13.

[irishonyx33]

I know there is a way to have completely separate finances even in a community property state, but it involves a pre-nup and keeping everything completely separate. Good luck with your case chp13.

Yes, I stand corrected. I forgot you can also quitclaim property to your spouse which would remove any interest you had in the property even in a c.p.s.

[LadyInTheRed]

I filed BK on my own because I incurred most of my debt before marriage and my husband has none. I did some research on this a while ago, but don't have the sources now. The following is my understanding of BK in a CP state. Before relying on any of this information, please consult with an attorney. My understanding could be wrong.

If one spouse files BK in a CP state, the discharge protects all community property. So, if the non-filing spouse has no separate property, she gets the benefit of the discharge for debt in the filing spouse's name. I believe the same is true of debt in their joint names, but I am not certain. If the couple later divorces, the non-filing spouse would lose the protection of the discharge since there is no community property following the divorce. Creditors could try to collect from her after the divorce. While they could go after her for debts incurred in her husband's name only during marriage, as a practicle matter they probably will not.

If there is community property debt and the spouse has separate property, it's best to file a joint BK to make sure the SP is protected. In any case, the safest thing to do is to file jointly. But, there is no requirement that you both file.

Separate property is any property owned before marriage or received by gift or inheritance and kept separate from community property. You can enter into an agreement (pre or post marital) agreeing that otherwise community property/debt will be separate property/debt. But, doing that in anticipation of bankruptcy won't work. Marital property agreements should only be entered into with each spouse having his/her own legal representation. If you try to do it yourself or are both represented by the same attorney, it may not be enforceable.