Spousal Waiver in California - Required if separated?

[Starky]

My wife and I have been separated for almost 4 years but have never actually gotten divorced. It's a long story that I'd rather not get into. We rarely contact one another. I am filing by myself and declaring that we are legally separated.

I want to use California exemption scheme (b) in my BK case (the one with the wildcard). Am I required to have her sign the spousal waiver?

Thanks very much.

[Pandora]

I dont know how CA works, but I know here in VA you cannot be "legally separated" if nothing has been filed with the courts; if you merely separate, then thats all it is... a choice on your respective parts, think of it like being estranged. I do believe you must file with the courts.

I believe any debts you hold together she will be responsible for, meaning you can file w/out her, however creditors will go after her for debts held together.

[Starky]

Well I appreciate the attempt, but this is a very specific question dealing with an esoteric point of California law. Any lawyers know the answer to this? Surely it has to come up fairly frequently.

In short: Does a separated couple need to file the spousal waiver required by CCP 703.140(a)(2) when one spouse files for bankruptcy?

[newbie2]

Well I appreciate the attempt, but this is a very specific question dealing with an esoteric point of California law. Any lawyers know the answer to this? Surely it has to come up fairly frequently.

In short: Does a separated couple need to file the spousal waiver required by CCP 703.140(a)(2) when one spouse files for bankruptcy?

I've been hanging around these boards for 5 years and have never seen this question come up. (No, it doesn't come up frequently) Since it is a specific point of law you are inquiring about, how about having a free consultation with an attorney?

[Starky]

I think I may have to. Of course, if any separated couple in California has one spouse that wants to file without the other, the situation applies to them. I imagine that happens thousands of times per year. But they probably consult an atty who knows.

[newbie2]

I think I may have to. Of course, if any separated couple in California has one spouse that wants to file without the other, the situation applies to them. I imagine that happens thousands of times per year. But they probably consult an atty who knows.

I'm sure it does happen often, however I haven't seen it here, and perhaps most others haven't also. (You would have gotten a reply to your question otherwise..)

[BrokeInCali]

I am in California. I filed without my husband. My husband did not sign any paperwork. There were no waivers or anything else.

My 341 is tomorrow, so I'll let you know if he was supposed to sign something, but my lawyer dropped the ball. (Actually I think I will email my lawyer right now)

[LadyInTheRed]

I also filed alone using System 2 and my husband didn't sign a waiver. I just checked the Northern California local rules and it says the waiver must be filed by the deadline to file schedules. It never came up and my Chap 13 plan was confirmed. I'll be emailing my attorney too! Would hate to get through my 5 year plan to be denied a discharge for such simple thing.

Starky, if you in fact are not legally separated, you can't declare on your bankruptcy form that you are. If you are living apart, but not legally separated, I think she will need to sign a waiver. If you have been ordered legally spearated by a court, you may not have to have her sign because my understanding is that a legal separation severs your financial ties. But, this is just a guess. You will probably need to ask a CA BK attorney the question. I am unaware of any CA BK attorneys posting here. But that doesn't mean there aren't any.

[BrokeInCali]

I heard back from my lawyer. The court that I am in (Central Court) does not require the waiver to be signed.

So it sounds like this is county specific and you will need to contact someone familiar with your particular district.

[LadyInTheRed]

I heard back from my lawyer. The court that I am in (Central Court) does not require the waiver to be signed.

So it sounds like this is county specific and you will need to contact someone familiar with your particular district.

It makes sense that it would vary by district. The law doesn't actually say anything about the waiver being filed with the court. I guess if your spouse doesn't sign one it only becomes an issues if your spouse tries to use System 1 before you are discharged. In the Northern District, local rule 4003-1 requires the waiver to be filed by the deadline to file the schedules. I sent an email to my attorney last night.