Separated spouse is filing & I do not want to.

[wittyl]

I would appreciate any information or advice.
My husband and I have been separated for almost 4 years. (not legal)
I found out his truck was repossessed which was in both our names and a small loan he took out in his name was never paid. It went from $2.500.00 to close to $9.000 (yea I'm surprised there not breaking knee caps!) Ok back to my question. He contacted me to say he wants to file chap 7 for those two. Approx maybe $15,000?
I do not want to as I have no outstanding bills other then a couple of medical bills and our outstanding IRS taxes which I am trying to get them to place as non collectible on my own. I do not want a BK on my credit.
He has told me he is doing it and does not need any authorization or signature from me???? Is that legal? Can he file a community property item before the divorce without my approval? We know longer are together but the truck was purchased in both our names which will go on my credit as well.
Any suggestions would be nice.
Thank you,
Wittyl

[tigergem]

He can file his own bankruptcy, sure. I can't believe anybody would for only $15k in debt, but what do I know...? He can't add you to it involuntarily, no. You would both have to show up to the meeting of creditors, and he would have some 'splaining to do. :-)

I do know this much though: The bad part about the truck loan being in both your names is that if he gets it discharged, it will be discharged as to him, and they will come solely after you for repayment of the deficiency. I know this because after our divorce, my ex-husband's attorney advised me to file Chapter 7 to "get even". I'm kinda hoping for the Ch 13 to be the same dish served, just a bit colder...

You know of course, you should probably be consulting an attorney about all of this.

[Flamingo]

Sounds like you need to visit two attorneys; a domestic relations attorney and a BK attorney. I'd make a free consultation with a BK attorney first and then proceed from there to find out exactly where you stand in the statein which you reside. Best of luck to you.

[wittyl]

He can file his own bankruptcy, sure. I can't believe anybody would for only $15k in debt, but what do I know...? He can't add you to it involuntarily, no. You would both have to show up to the meeting of creditors, and he would have some 'splainin to do. :-)

I do know this much though: The bad part about the truck loan being in both your names is that if he gets it discharged, it will be discharged as to him, and they will come solely after you for repayment of the deficiency. I know this because after our divorce, my ex-husband's attorney advised me to file Chapter 7 to "get even". I'm kinda hoping for the Ch 13 to be the same dish served, just a bit colder...

You know of course, you should probably be consulting an attorney about all of this.

Thank you for the info. You have to love CA huh! One minute they are saying this is a community state 50/50 and the next they are allowing a schmuck....oh excuse me an almost ex spouse to file BK on his own and creating hardship for the other spouse!!
Is there a minimum as the dollar amount one can file for in CA?
So basically I am better off joining him and agreeing to this BK so they do not come after me. UNLESS? If he files in CA does it automatically include me since it is a community state then they could not come after me?
Thank you.

[bluejeans]

The only way you would be included in his bankruptcy is if your name was on the petition AND you signed it. There is no automatic anything that would pull you into that filing. The others are correct though. The debts that he discharges are going to be solely yours as soon as he is discharged.

[wittyl]

The only way you would be included in his bankruptcy is if your name was on the petition AND you signed it. There is no automatic anything that would pull you into that filing. The others are correct though. The debts that he discharges are going to be solely yours as soon as he is discharged.

LOVELY!!! Well I guess if you can't fight them then join them certainly does apply here. Pretty sad though. I am being forced to have a BK on my credit or have the Barracudas on my back.
Is there a minimum amount owed to file BK in CA ?
Thank you very much.
Wittyl

[SMinGA]

The truck is already on your credit. They can and will pursue you for payment, regardless of what he does. He can file BK without your approval, and at that point the creditor for the truck will only be able to collect from you. That would be true even if you were intending to stay married.

Seeking legal advise on the marital split does seem like a good idea. As I understand it, BK can discharge one's obligations to their creditors but it does not relieve them of responsibilities assigned by a divorce decree. One down side, since you've waited so long and the truck loan has already defaulted, I'm not sure if you'll be able to get him to agree to financial responsibility for it in a divorce decree. (Without putting out a decent bit of $ to fight him for it legally, that is.)

There is no minimum debt one can file over - but when one files BK they 'file on' all outstanding debts. Its quite possible I imagine that he has more (credit cards, collections, etc.) than what you are aware of.

[wittyl]

The truck is already on your credit. They can and will pursue you for payment, regardless of what he does. He can file BK without your approval, and at that point the creditor for the truck will only be able to collect from you. That would be true even if you were intending to stay married.

Seeking legal advise on the marital split does seem like a good idea. As I understand it, BK can discharge one's obligations to their creditors but it does not relieve them of responsibilities assigned by a divorce decree. One down side, since you've waited so long and the truck loan has already defaulted, I'm not sure if you'll be able to get him to agree to financial responsibility for it in a divorce decree. (Without putting out a decent bit of $ to fight him for it legally, that is.)

There is no minimum debt one can file over - but when one files BK they 'file on' all outstanding debts. Its quite possible I imagine that he has more (credit cards, collections, etc.) than what you are aware of.

Your correct, the only good thing is they have always known about the separation and have kept in contact by mail but have left me alone as far as the collection attempt phone calls.
As far as the financial responsibility on the Truck....I do not know if it would hold up but he did sign an agreement as to taking possession of the truck and the monthly payment as his sole responsibility including what he removed from the house was to be his portion of what he wanted for the community split.
Hopefully that holds up in court??
I am filing this week for the divorce before he files for the BK and I guess I will join him in the BK filing as well. I do not believe it will be in my best interest if I do not.
Thank you.

[SMinGA]

If you divorce now, you'll probably have to file your own BK case. May have to either way - since you have 2 separate households.

[wittyl]

If you divorce now, you'll probably have to file your own BK case. May have to either way - since you have 2 separate households.

Pfft!! It never gets easier does it! Amazing.
Thank you.
Wittyl

[SMinGA]

On the bright side, this gives you some things to ask about when you consult an attorney. On that topic - most BK attorneys give free first consultations. When you meet with the attorney, leave cash/check book at home. Don't feel pressured to leave a retainer after the first visit. They have to work to earn your business.

To the consult, bring info about your situation: info on income, expenses, debts and the scenario with the joint debts. Ask questions, and ask more if you don't understand what they are talking about.

[wittyl]

On the bright side, this gives you some things to ask about when you consult an attorney. On that topic - most BK attorneys give free first consultations. When you meet with the attorney, leave cash/check book at home. Don't feel pressured to leave a retainer after the first visit. They have to work to earn your business.

To the consult, bring info about your situation: info on income, expenses, debts and the scenario with the joint debts. Ask questions, and ask more if you don't understand what they are talking about.

Great info.....Thank you sooooo much. I will call one and yes the money will stay home what there is of it.(lol)
I will keep you abreast of what happens or what they say.
Thank you so much for your time and info.
Wittyl

[tigergem]

Your correct, the only good thing is they have always known about the separation and have kept in contact by mail but have left me alone as far as the collection attempt phone calls.
As far as the financial responsibility on the Truck....I do not know if it would hold up but he did sign an agreement as to taking possession of the truck and the monthly payment as his sole responsibility including what he removed from the house was to be his portion of what he wanted for the community split.
Hopefully that holds up in court??
I am filing this week for the divorce before he files for the BK and I guess I will join him in the BK filing as well. I do not believe it will be in my best interest if I do not.
Thank you.

That agreement might hold up fine in the divorce court, and if you can get an order based on it, then you might have basis to object to discharge of the debt in his bankruptcy. *I'm not positive about that, and you still need to consult an attorney!

HOWEVER, the creditor will not honor either that agreement nor your divorce order. If you have such an order, your only recourse if you are sued by the creditor is to either sue your ex or file BK to discharge the debt.

But yes the truck is on your credit. Now if you are in California you need to look up the Rees-Levering Act, because if you do not receive California's special NOI from the lender, you have an entirely different basis to be "home free" on the truck, with lots and lots of case law to back you up in defense.

Best of luck!

[optimistic1]

The truck is already on your credit. They can and will pursue you for payment, regardless of what he does. He can file BK without your approval, and at that point the creditor for the truck will only be able to collect from you. That would be true even if you were intending to stay married.

That is simply false. In a community property state, if one spouse files for bk for a community debt, and it is discharged, that debt bars creditors from collecting from the non-filing spouse. There are several 9th Circuit cases that verify this. If you divorce, you lose the hypothetical discharge, that's if the creditor is still paying attention years later.