Legal Seperation?

[TeacherMomma]

If you are legally seperated from your spouse and you file a Chapter 7, is the other spouse's income included on the means test?

[HHM]

It probably depends on the specific state law. But I would think the answer is yes. Legal separation is a way to divide the finances, but keep in mind, if you live under the same roof, you still have the "household" income issue.

I notice in your signature that your pro se chapter 7 is being dismissed, (you have probably posted about this already), but what was the reason?

[MSbklawyer]

Here is the relevant code section:

11 USC 707(b)(7)(B)

(B) In a case that is not a joint case, current monthly income of the debtor's spouse shall not be considered for purposes of subparagraph (A) if--

(i)

(I) the debtor and the debtor's spouse are separated under applicable nonbankruptcy law; or

(II) the debtor and the debtor's spouse are living separate and apart, other than for the purpose of evading subparagraph (A); and

(ii) the debtor files a statement under penalty of perjury--

(I) specifying that the debtor meets the requirement of subclause (I) or (II) of clause (i); and

(II) disclosing the aggregate, or best estimate of the aggregate, amount of any cash or money payments received from the debtor's spouse attributed to the debtor's current monthly income.

So I think HHM is right -- you have to be legally separated under your state's law OR actually living apart.

We don't have "legal separation" here, so I'm not sure what the definition of it is. But I would guess that it require that you not be cohabitating with your spouse.

[TeacherMomma]

It was dismissed for high income and not allowing my student loans to be used as an expense. So they say we have disposable income, but we don't since we have to pay a huge sum to student loans.

So let's say that my husband's eyes were opened to the enormity of my debt and decided to file legal seperation. We work opposite shifts and do not see each other but two nights a week, and on those two nights a week he or I stayed elesewhere. Keeping one residence for our daughter. Still have the same household issue, even if we had a rental agreement? I am not on the mortgage, it is from before marraige and I signed off on it ever being community prop, if that matters. Or would one of us have to live elsewhere?

[TeacherMomma]

Oh so if we met "I" then that would mean only the filer's income could be used cause it says I "or" II, right?

[killinstinct]

Sounds like your cleanest option would be to file for legal separation then. It would be clear. If you're sharing a roof for any reason, I think a TT would have an argument. And legal separation should be pretty easy, your spouse would probably go along with it.

[MSbklawyer]

Oh so if we met "I" then that would mean only the filer's income could be used cause it says I "or" II, right?

That's the way I read it. If you meet (I) under section (i) you're good to go. But you still have to comply with (ii).

[TeacherMomma]

So MsBk, it is your opinion then that even if we shared a roof under the arrangement I detailed, it would be fine?

[HHM]

No offense, go hire a BK attorney, you should never have attempted this case pro se in the first place. If you have enough income to be kicked out of a BK-7, you can afford an attorney.

Even a 1st year attorney could have told you they wouldn't allow your student loans as an expense.

[MSbklawyer]

So MsBk, it is your opinion then that even if we shared a roof under the arrangement I detailed, it would be fine?

Well, I try to avoid giving official "opinions" because I'm not licensed to practice in California . But, if you are living under the same roof but working different shifts, would you meet (i)(II)'s "living separate and apart" requirement? Would a court find that the circumstances you described are "living separate and apart"? If it did, it wouldn't be the first time that a court -- especially a California court -- ruled that a statute means something directly contrary to its plain language -- so who knows?

So we go to (i)(I): What does "legally separated" mean on the left coast? I honestly don't know. You'd have to research it.

[TeacherMomma]

No offense, go hire a BK attorney, you should never have attempted this case pro se in the first place. If you have enough income to be kicked out of a BK-7, you can afford an attorney.

Even a 1st year attorney could have told you they wouldn't allow your student loans as an expense.

Why are you such a jacka** to everyone? Why ask me only to say something insulting? I watch your replies to people and they are often rude and insulting. Just because you put "no offense" does not mean that it isn't offensive. You can search my posts to see my exact situation. And no, we didn't have enough money for an atty - those loans HAVE to be paid so it isn't like CCs where you can not pay them for a few months to save up for a lawyer.

And no, most of the attorneys that were consulted said it might fly. It didn't.

Is or is not this forum for people to help each other? Aren't you a moderator even? What is your problem?

[TeacherMomma]

Well, I try to avoid giving official "opinions" because I'm not licensed to practice in California . But, if you are living under the same roof but working different shifts, would you meet (i)(II)'s "living separate and apart" requirement? Would a court find that the circumstances you described are "living separate and apart"? If it did, it wouldn't be the first time that a court -- especially a California court -- ruled that a statute means something directly contrary to its plain language -- so who knows?

So we go to (i)(I): What does "legally separated" mean on the left coast? I honestly don't know. You'd have to research it.

Thanks.

[MSbklawyer]

Why are you such a jacka** to everyone?

It's that Scotch. You can see it in his avatar. I makes some people that way. Me, I get just the opposite when I drink it. Warm, fuzzy and overly friendly.

I'm just kidding, HHM. I know you didn't mean to give offense.

[HHM]

I say no offense when I know I am going to "give you advice and help" you don't or are not prepared to hear. I have been on this forum since 2004, nothing is really new; so generally, peoples reactions are fairly predictable.

It doesn't change the fact that you NEED an attorney at this point. The fact is, you didn't hire an attorney because you weren't willing to make the sacrifice or changes to get the money, that is a choice. Now you blew-up your BK on grounds that are fairly obvious. You don't really have a choice at this point. Now you are scrambling for some loop-hole (legal separation). Time to lose the pride and get real help, and pony up the cash.

Note, I am not a jack-ass to everyone

[TeacherMomma]

Yeah, my husband leaving cause of the stress is a loophole.

Thanks.

What do you NOT get. What sacrifices or changes can be made to come up with 5-19K? Those were the spectrum of fees I would be charged - up front. What changes, please tell me, can yield those sort of funds?

And....you are right, you are only a jack-ass to those whose situations you cannot seem to understand. I don't care what you have been doing since 2004, you are rude. Don't respond if it is isn't helpful. Or do you not remember that since I have been on this forum you have told me three times to get an atty - I am still not going to listen to you. Pride? Are you kidding me? What does this have to do with pride?