? re One spouse filing Ch7

[boochase]

I am considering filing CH 7 without my wife. I have 22K worth of credit card debt; she has none. We own a 206K home with a 194K first and a 45K second; we are joint signers of both mortgages. According to the means test, I qualify for Ch7. We live in Florida which recognizes "tenants by the entirety." Only other significant asset we jointly have is 40K in cash. Question: if I file and my wife does not, is our cash protected by the "tenants by the entirety" rule? We do plan to reaffirm our mortgages and we do need the cash to produce monthly income; otherwise we would lose everything. Anyone else here filing or have filed under these circumstances. Appreciate the comments.

[newbie2]

I am considering filing CH 7 without my wife. I have 22K worth of credit card debt; she has none. We own a 206K home with a 194K first and a 45K second; we are joint signers of both mortgages. According to the means test, I qualify for Ch7. We live in Florida which recognizes "tenants by the entirety." Only other significant asset we jointly have is 40K in cash. Question: if I file and my wife does not, is our cash protected by the "tenants by the entirety" rule? We do plan to reaffirm our mortgages and we do need the cash to produce monthly income; otherwise we would lose everything. Anyone else here filing or have filed under these circumstances. Appreciate the comments.

I'm not sure if it's even a question about filing jointly or not..does Florida have a cash exemption that high? Or is it that you are trying to protect all $40,000 by using the "tenants by the entirety" rule as claiming that all $40,000 should be your wifes money and not touched by the trustee?

[keepmine]

T by E protection isn't automatic. The bank account and property must be titled in that manner prior to filing.

[boochase]

In Florida, there are 6 criteria for a joint account by spouses to be considered "tenants by the entirety." If a Florida resident fits the criteria, all joint accounts will qualify. The accounts do not need any special designation. Below are the criteria:

joint ownership and control,
identical interest in the property,
the interest must have originated in the same instrument,
the interest must have commenced simultaneously,
the parties must have been married at the time they acquired the property, and
the surviving spouse will own the property after either spouse dies.

We fit this criteria. That is why I believe the court cannot take property from a non-filing spouse. I just wondered if anyone has had any experience or should I say success with T by the E anywhere.

[blackomega]

Now don't take this as legal advice but I am married and filed by myself last year. Our joint accounts (checking/savings) would have had to have been setup that way from the very beginning per my attorney. Our bank however doesn't even have the option of titling accounts that way. Here is a URL that I think might help explain it, either way per my attorney if it wasn't setup that way in the beginning as well as meeting the rules then you can't claim it, also the same goes for house deeds and cAr titles. As for cars he said they must be titled as "and" otherwise they are not TBE.

http://www.sbshlaw.com/blog/estate-planning/joint-ownership

[momofthree]

I would be very very careful to be sure that your $40k is covered by TBE and not just joint accounts. Once you file ch.7 there is no changing your mind and backing out. So, if the trustee is able to take your $20k and distribute it to your creditors, you are stuck with that decision and filing bk may end up costing you more than if you'd just paid your debts off yourself (attorney fees, court fees, etc.).

[OHBOY]

Sound like a slippery road to take to even try to pull this off in bk.......just my opinion

[newbie2]

In Florida, there are 6 criteria for a joint account by spouses to be considered "tenants by the entirety." If a Florida resident fits the criteria, all joint accounts will qualify. The accounts do not need any special designation. Below are the criteria:

joint ownership and control,
identical interest in the property,
the interest must have originated in the same instrument,
the interest must have commenced simultaneously,
the parties must have been married at the time they acquired the property, and
the surviving spouse will own the property after either spouse dies.

We fit this criteria. That is why I believe the court cannot take property from a non-filing spouse. I just wondered if anyone has had any experience or should I say success with T by the E anywhere.

Have you talked with an attorney yet about this? My concern: Florida state law may not be in play with Federal bankruptcy rules & exemptions. It could be apples vs oranges.

[seFlaDude]

TBE is recognized in florida bankruptcy court, but to be sure reference the bank account I would find a bank that does do TBE accounts, (I did) and open an account at the same time with your spouse as TBE

[scorpion35]

T by E protection isn't automatic. The bank account and property must be titled in that manner prior to filing.

what do u mean?

[OHBOY]

Quote by 'seFlaDude': "TBE is recognized in florida bankruptcy court, but to be sure reference the bank account I would find a bank that does do TBE accounts, (I did) and open an account at the same time with your spouse as TBE"

Dude: As this is appealing,please allow me inquire as to when abouts you opened that TBE account ?... how much time passed before you filed for bk ?

[seFlaDude]

ohboy: I have not filed yet as I have to put some time between other issues, I will pm you as to which bank I am using, You never know who is reading this forum but my bank is a Florida only bank with 4 branches and they clearly have TBE accounts

[seFlaDude]

I might add that I opened these accounts prior to considering BK as an estate planning tool, as my health is not the greatest and with everything as TBE my wife owns everything 100% so there won't be any estate issues if I go for the dirt nap, :0