Attorney Changed Petition Without My Consent

[qwerty64]

My ex and I were in a bitter divorce feud and filed a joint Chapter 7 along the way. Without my knowledge or consent, my ex called the BK attorney and had him change the Statement of Intent on our house. We had agreed to reaffirm the debt to keep the house but my ex had them change the petition to surrender the house.

All this was done on the basis of a phone call. Nothing in writing and without my consent.

Is this legal? It's a JOINT filing. Shouldn't we both have to consent to any changes?

Did the attorney commit malpractice here?

[justbroke]

It's a joint filing. You should have severed the Chapter 7 (split it) into two separate Chapter 7s if there were issues. Divorce and bankruptcy don't mix well and is specifically why I encourage those going through a divorce to maintain separate divorce and bankruptcy attorneys for each party!

Why would you reaffirm debt on a home anyhow?

[rpraver]

My ex and I were in a bitter divorce feud and filed a joint Chapter 7 along the way. Without my knowledge or consent, my ex called the BK attorney and had him change the Statement of Intent on our house. We had agreed to reaffirm the debt to keep the house but my ex had them change the petition to surrender the house.

All this was done on the basis of a phone call. Nothing in writing and without my consent.

Is this legal? It's a JOINT filing. Shouldn't we both have to consent to any changes?

Did the attorney commit malpractice here?

Statement of Intentions has to be signed. How did it read when you signed it?

Making more of this than it means anyway. Statement of intentions is just that, your intention. It doesn't bind you to either retain the property or surrender it. For instance, it may not be in your best interest to continue to pay on your mortgage under the existing terms, so your intention would be to surrender. However, if after the Chapter 7 you are able to negotiate a mortgage modification you can still keep the house. The fact that your statement of intentions said your intention was to surrender does not preclude you from keeping the house if you're later able to do so.

Also, agree 100% with what Justbroke said. If the divorce is "bitter" probably not a good idea to file joint Chapter 7 using one attorney (though this is really something the attorney should have discussed with the two of you in detail before accepting the case).

[justbroke]

Adding, that if I were a party in a divorce, and I wasn't the one keeping the marital residence and there were other provisions in the Property Settlement agreement, then I would never ever reaffirm. (Even though I'd never reaffirm anyhow, I would never do so if it's part of a dissolution of marriage property settlement agreement. Never.)

Remember, that the divorce decree and property settlement may actually bind you to terms even though you may have discharged the debt. You could still be civilly responsible. This is why divorce and bankruptcy don't mix. If you have to do the two at the same time... make sure you have different attorneys, and certainly think hard before filing a joint petition in the middle of the divorce.