Texas Divorce question, she did not file with me

[Blaze4v]

I filed in Jan 2012 and have 2 years and 4 months left of payments. We decided she shouldn't file so that she could help me as a cosigner to buy a car...well that was the plan, her credit is in the dumps so wouldn't have helped anyway.

Here's my predicament. I'm thinking of divorce and called my BK attorney and what he said disturbed me a little. He told me to try to "ride the storm" and not get divorced because I would have to re-file and start the clock all over again for 5 more years. He mentioned "that's my best advice, I could easily do what you request and make another $X amount of dollars in a new filing". He says that's it's because I will be a new single income earner status.

I just don't comprehend this?! When I filed originally they took into account both our incomes, if I get divorced I will NOT have her income, plus my "single income" would be less because of child support. Is there any validity in what he is telling me? I feel trapped in a stressful marriage just because of the BK? I think that's ridiculous.

[TXskyblue]

Are you think you'll qualify for a chapter 7 if you're divorced and paying child support?

[Blaze4v]

Are you think you'll qualify for a chapter 7 if you're divorced and paying child support?

No, I do not want a chapter 7. I want to continue paying on my plan and paying on my house. There is zero equity in the house right now. But I still want to pay on it and I can. I also want to continue paying my monthly Ch 13 trustee payments. I just don't want to start over, re-file and pay for 5 more years as my attorney suggested that I would have to. Why can't I just keep paying everything as is for the remaining 2 years and 4 months that I have left?

[kornellred]

You say you are "thinking" of divorce. What does your spouse think? A divorce is a lawsuit - you cannot make a decision to seek a divorce unilaterally unless you have verifiable grounds to do so.
You said that you have 2 years and 4 months of payments left and that you filed in January 2012. That would make your Chapter 13 47 months in length, which is a highly improbable number. (some 60 month plans are negotiated down several months routinely - mine was) There must be some extenuating circumstance for your attorney to say that re-filing would put you in a 60 month plan situation. Perhaps your income would be pretty far above the median for a single-person household in Texas? That would automatically put you in the 5 year plan category.

And don't forget - your spouse could make your life hell on earth when it comes issues of asset retention, such as keeping your house.

Good luck, from someone with one divorce and not one but two bankruptcies to his credit!

[Blaze4v]

You say you are "thinking" of divorce. What does your spouse think? A divorce is a lawsuit - you cannot make a decision to seek a divorce unilaterally unless you have verifiable grounds to do so.
You said that you have 2 years and 4 months of payments left and that you filed in January 2012. That would make your Chapter 13 47 months in length, which is a highly improbable number. (some 60 month plans are negotiated down several months routinely - mine was) There must be some extenuating circumstance for your attorney to say that re-filing would put you in a 60 month plan situation. Perhaps your income would be pretty far above the median for a single-person household in Texas? That would automatically put you in the 5 year plan category.

And don't forget - your spouse could make your life hell on earth when it comes issues of asset retention, such as keeping your house.

Good luck, from someone with one divorce and not one but two bankruptcies to his credit!

We can't stand each other.
Highly improbable number? I pay $800 a month to the trustee on a 4 year plan.
Extenuating circumstances? My income is increasing dramatically...I'm at $60K YTD 2013 trending to 120K for this year, where I was making $18K per year the 2 years before I filed for BK. However, 25% of the net would go to her in child support, no spousal support as she's a teacher and with her salary plus my child support she should be ok. I consulted with a couple divorce lawyers. But none of them know my BK question. Do I need to refile or not? 5 more years is for the birds!!!!!!

[kornellred]

Never heard of a 4 year plan, but if you say so, then that's that.

If you do have to re-file, you will definitely be in a 5 year plan with that kind of income.

Why don't you just separate? That would entirely eliminate the need to re-file, if indeed there actually is a need to begin with. You may, in any case, need to modify the existing Chapter 13 plan to account for your significant increase in income.

[LadyInTheRed]

It doesn't make since that you would need to refile. You may need to modify your plan, but refiling doesn't make sense. Is your attorney an experienced BK attorney? Ask him why you would refile instead of modifying your plan.

[LadyInTheRed]

Never heard of a 4 year plan, but if you say so, then that's that.

Either his income was under median at the time he filed and had to go over 36 months to pay minimum amounts that had to paid in his plan, or he was over the median and could pay all debt in 4 years.

[Blaze4v]

It doesn't make since that you would need to refile. You may need to modify your plan, but refiling doesn't make sense. Is your attorney an experienced BK attorney? Ask him why you would refile instead of modifying your plan.

He said because I would have a new status? Single income earner?

[filingin08]

When my DH and I were going through a rough patch, I raised the divorce question w/our atty who said the Trustee did not care how they got paid or what our marital situation was as long as they got paid. We filed BK13 jointly. We're in Ohio and seem to have an atty who isn't afraid to be creative. Best.

[LadyInTheRed]

He said because I would have a new status? Single income earner?

That makes no sense. Your change in marital status may result in a need to file a petition to modify your plan, but it does not require you to file a whole new BK. If your attorney said that waiting until after your plan is completed to get divorced was preferable to modifying your plan and could explain why, that would be one thing. But, telling you that you would have to file a new Chap 13 is wrong. Even if you filed a joint Chap 13, you could either continue the current case, convert to a 7 or bifurcate your case so each of you could continue with your own Chap 13 instead of starting over.

Is there any chance you are misunderstanding your attorney and that by a "new filing" he means the filing of a petition to modify? I think you should either push him for a better explanation as to why you can't modify your plan or consult with a different attorney. You may have to make a lot of phone calls to find an attorney willing to consult with you when you are already represented by counsel. Make clear that you are in an a Chap 13 that you filed without your wife and need a second opinion about the consequences of a divorce during your plan. If you have a divorce attorney, you may ask if he can recommend a BK attorney with experience with divorce during a Chap 13.

How much BK experience does your attorney have?

[LadyInTheRed]

I reread this thread and I wanted to comment on a couple more things

I pay $800 a month to the trustee on a 4 year plan.
My income is increasing dramatically...I'm at $60K YTD 2013 trending to 120K for this year, where I was making $18K per year the 2 years before I filed for BK. However, 25% of the net would go to her in child support, no spousal support as she's a teacher and with her salary plus my child support she should be ok.

Your increasing income may be why your attorney thinks you should wait to divorce. A modified plan would take into account your current income and could end up increasing your plan payment. Child support may help even it out, but your plan payment would also be based on a smaller household. If he is concerned that a modification would increase your payment, he should explain that. Increasing your payment for the remaining time in your plan would be better than starting over. After all, a plan in a new Chap 13 case is probably going to require as high a payment as a modified plan in the existing case.

No, I do not want a chapter 7. I want to continue paying on my plan and paying on my house. There is zero equity in the house right now. But I still want to pay on it and I can. I also want to continue paying my monthly Ch 13 trustee payments.

Are there mortgage arrears being paid in your Chap 13 plan that have not yet been paid off? If not, and you can pass the means test, you can convert to a 7 and still keep your home as long as you keep making mortgage payments.