How should I handle the car?

[Movingon2010]

I am considering filing bankruptcy and may have to do it pro se as I financially cannot afford a lawyer. I just found this place to day and plan to do alot of reading and asking before filing. I have a lot of debt, one of which is a car loan that me and my soon to be ex is on the note as well as the title. IF I file bankruptcy and include the car in the bankruptcy will they want the car back if payments are current? If not will they only go after Ex if I stop making the payments? I want to continue to keep the car and make the payments on the car but would love to get rid of all liability if I could. Or is it just better to reaffirm the debt. What would you do?

[drowning123]

If your ex wants nothing to do with the car, tell him to sign it over to you so that you have full title and his name is off the note. This way when you stop paying on the car, his credit won't be affected or if you don't care about him, leave everything as is. LOL. Once you have full title and the note is only in your name (I don't know how that works), the next step is to file Chapter 7 and get rid of the car. If it's current, chances are the bank won't re-possess, but that depends on a lot of things. Is it worth it to them to re-possess, is it a Toyota car or a luxury car? It depends on the bank's policy on bankruptcy. These are a few factors to consider, which leads me to my thoughts on re-affirmation. Run the other way! Never a good thing. Of course, this is all my opinion.

[Movingon2010]

Honestly I am not worried about the ex in this one. Im in the position because he left me with all the bills. The car is through Cap one. Im just thinking if I keep paying on it no harm no fowl. When and if my ex finds out about the BK and he decided to go ape shit and take the car himself I will atleast be able to go out and get another one with hopefully a lower payment. The car isnt luxery its a saturn.

Anyone else agree with the above poster on this one?

[rjmwx81]

My advice would be to finish making him an ex, instead of a soon-to-be ex, before filing BK. That is, get the divorce (I assume this is a divorce and not a boyfriend/girlfriend thing?) finished before the BK...because the divorce might re-distribute the debts anyway.

[Movingon2010]

THe only thing my ex and I have as far as joint debt is the car. I cant wait until the divorce I am financially in trouble now.

[rjmwx81]

Sorry to hear that. In that case the best advice I can give would be to make sure your BK lawyer is very good, because I'm sure going through a divorce at the same time as the BK makes things a bit more complicated. My divorce has been final for months and I'm still hesitant to file because of how strangely worded my divorce agreement is...trying to make those payments make sense on the BK forms is like trying to fit a square peg in a round hole.

As for the car, I believe you're required to mark whether you intend to reaffirm, redeem, or surrender. Ride-through (pay and keep the car, but without reaffirming) isn't an *official* choice anymore. What I see a lot of people here suggesting/doing is you mark that you intend to reaffirm, and then either your attorney or the judge doesn't approve the agreement, and then you keep on paying/driving without an official reaffirmation. This is called a back-door ride-through. If you do this, I doubt the bank would bother your ex so long as they're getting their money...if they're a bank that's OK with ride-throughs (some aren't, from what I hear.)

[tcreegan]

Hi movingon2010,

Pretty sure you aren't filing BK for just a car loan......right?

Since you are pro-se, I would be remiss if I didn't mention the NOLO book. Basically a step-by-step how to file BK www.nolo.com

Also, before worrying about the car, have you done the means-test yet? You can get the official form (B22a) from any BK court website, or find an oline means-test calculator. This is the first step in Ch 7 BK

As to the car, it depends on the community property laws in your state (since the BK will be pre-divorce) If you are in a community property state, the debt may be discharged for the community; ie: both of you. If not, your part of the debt will be discharged and his will not. So if either of you default on the contract, they go after him for the debt.

In either case, the lien survives the BK, so you need to stay current on payments and insurance if you want to keep the car. Your lender may say nothing about the BK and just keep letting you make payments (a ride-through) or them may require you to reaffirm the loan (or redeem or surrender) The best advice is to NOT reaffirm since you become liable for the debt again.

Glad you found us, lots of good knowledge here,

Tom in Colo

[Movingon2010]

You are correct I am not just filing because of the car. I have years worth of medical bills,credit card debt etc pre marriage but the key is that I was working on those. When he left I had to put all disposable debt that I was going to use to clear up credit to now surving with my 2 kids.

As for the means test I seem to pass with flying colors. For a family of 3 in VA you can make up to like $6000 a month. I bring in half of that so I should be just fine there.

Does anyone know if Cap one is good with ride throughs?

[Pandora]

You said your husband "left" and that you had to put all excess/disposable income to supporting your children - did your husband take on debt as well or did he leave you with all of it? If he just up and left, leaving you with everything including care of the children....

Pulled from code -

Virginia is an equitable distribution state, meaning that if the parties can't agree, the marital property will be distributed in an equitable fashion, not necessarily equally. The amount of any division or transfer of jointly owned marital property, and the amount of any monetary award, the apportionment of marital debts, and the method of payment shall be determined by the court after consideration of the following factors:

* The contributions, monetary and non-monetary, of each party to the well-being of the family.
* The contributions, monetary and non-monetary, of each party in the acquisition and care and maintenance of such marital property of the parties.
* The duration of the marriage.
* The ages and physical and mental condition of the parties.
* How and when specific items of such marital property were acquired.
* The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities.
* The liquid or non-liquid character of all marital property.
* The tax consequences to each party.
* The use or expenditure of marital property by either of the parties for a nonmarital separate purpose or the dissipation of such funds, when such was done in anticipation of divorce or separation or after the last separation of the parties.
* Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.



Until you come up with a separation agreement that provides for equal distribution of everything (including debts) based upon pay ratio, I think your husband is still on the line for certain responsibilities.

Everything is negotiable until the divorce is final.


You say the only debt you share is the car.... but make sure Code applies:

Separate property is (1) all property, real and personal, acquired by either party before the marriage; (2) all property acquired during the marriage by bequest, devise, descent, survivorship or gift from a source other than the other party; (3) all property acquired during the marriage in exchange for or from the proceeds of sale of separate property, provided that such property acquired during the marriage is maintained as separate property; and (4) that part of any property classified as separate property. [Based on Code of Virginia, Title 20, Section 20-107.3]


As for your children and yourself - you need to read VA Code Code of Virginia, Title 20, Section 20-108.1 Section 20-107.1

Hope it can provide you with some assistance and help.

[Movingon2010]

Pandora your response was wonderful thank you so much~! In Va you have to be seperated for a year before you can file divorce also in VA there is no such thing as legal seperation. I have however hauled his but into Child support enforcement and he pays child support already each month. I am asking for nothing in the divorce when we do file. He makes more then I do but not by much. The only thing joint that we acquired during the marriage is a car and there is one bill that we both defaulted on a couple years ago thats on both of our credit. We have furniture that is old and he doesnt want. He always kept our finances basically seperate (there where control issues). He has a car that he brought into the marriage that is now paid for that he drives. Other then those two things we have Nothing that binds us except my daughter. I personally would hate to wait to file bankruptcy until after the divorce and some how he gets put in the divorce decree that non of our joint debts can be discharged in bankruptcy. Then I would be screwed if that were the case then I would be forced to reaffirm which everyone is telling me NOT to do .

You said your husband "left" and that you had to put all excess/disposable income to supporting your children - did your husband take on debt as well or did he leave you with all of it? If he just up and left, leaving you with everything including care of the children....

Pulled from code -

Virginia is an equitable distribution state, meaning that if the parties can't agree, the marital property will be distributed in an equitable fashion, not necessarily equally. The amount of any division or transfer of jointly owned marital property, and the amount of any monetary award, the apportionment of marital debts, and the method of payment shall be determined by the court after consideration of the following factors:

* The contributions, monetary and non-monetary, of each party to the well-being of the family.
* The contributions, monetary and non-monetary, of each party in the acquisition and care and maintenance of such marital property of the parties.
* The duration of the marriage.
* The ages and physical and mental condition of the parties.
* How and when specific items of such marital property were acquired.
* The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities.
* The liquid or non-liquid character of all marital property.
* The tax consequences to each party.
* The use or expenditure of marital property by either of the parties for a nonmarital separate purpose or the dissipation of such funds, when such was done in anticipation of divorce or separation or after the last separation of the parties.
* Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.



Until you come up with a separation agreement that provides for equal distribution of everything (including debts) based upon pay ratio, I think your husband is still on the line for certain responsibilities.

Everything is negotiable until the divorce is final.


You say the only debt you share is the car.... but make sure Code applies:

Separate property is (1) all property, real and personal, acquired by either party before the marriage; (2) all property acquired during the marriage by bequest, devise, descent, survivorship or gift from a source other than the other party; (3) all property acquired during the marriage in exchange for or from the proceeds of sale of separate property, provided that such property acquired during the marriage is maintained as separate property; and (4) that part of any property classified as separate property. [Based on Code of Virginia, Title 20, Section 20-107.3]


As for your children and yourself - you need to read VA Code Code of Virginia, Title 20, Section 20-108.1 Section 20-107.1

Hope it can provide you with some assistance and help.

[researchnerd]

If your ex wants nothing to do with the car, tell him to sign it over to you so that you have full title and his name is off the note. This way when you stop paying on the car, his credit won't be affected or if you don't care about him, leave everything as is. LOL. Once you have full title and the note is only in your name (I don't know how that works), the next step is to file Chapter 7 and get rid of the car.

I know this from experience: Whether or not he signs the title over to you, you will not be able to remove your STBX from the note. Even if you specify in the divorce settlement that he alone is responsible for the car payments, they can come after you if he stops paying. The lender does not have to accept the settlement agreement, and most often they do not. If there are two people on the loan, their chances of getting paid by one or the other are much higher than if there is only one.

If your only joint debt is the car, and you want to get rid of all liability for it, your simplest solution may be to sell the car and pay off the loan. That way there will be no joint debts to argue over, and you can't be forced to reaffirm. Is that an option, or is the loan underwater? Divorce judges actually prefer this too, especially if you will be doing your divorce pro se as well.

[tcreegan]

Hello movingon2010,

and some how he gets put in the divorce decree that non of our joint debts can be discharged in bankruptcy

I don't think this is possible, BK law is federal level which trumps state divorce law.

Maybe one less thing to worry about...?

Tom in Colo

[Pandora]

NP movinon2010 - I'm also in the "Lovers" state Didnt know if you were in the pre-planning stages or what with your upcoming divorce, so thought I'd share with you.

I agree with Tom - I dont believe its an option and your husband certainly cant tell the courts/judge what he wants "just because".

[rjmwx81]

I agree with Tom - I dont believe its an option and your husband certainly cant tell the courts/judge what he wants "just because".

Oh, he can tell the judge what he wants, but that doesn't mean he's going to get it.

In my state, even uncontested divorces are reviewed by a judge for fairness. My ex and I agreed on our settlement before either of us went to a lawyer, and even so the judge took her sweet time in making sure neither of us received any kind of unfair advantage.

It totally depends on the state, but there might not be any "joint debt" left after the divorce. The divorce court can say that what was previously joint debt now belongs to one person or the other. Now, if the person responsible defaults, the creditor might try going after the other spouse, but if they sue, the divorce decree stating that the spouse is no longer responsible for that debt should be a defense. That was the way it was explained to me in my divorce, anyway. Your mileage may vary.

[Movingon2010]

Thank you so much for the reply, we are def upside down on the car. I could sell but we would still owe it wouldnt pay off the debt.