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Can I File Bankruptcy Without My Spouse?

must i file bankruptcy with my spouse?

Must married people file bankruptcy jointly. No, it is possible for a married person to individually file for bankruptcy, however, there are several key issues to be aware of. Especially if the couple live in a community property state like Arizona.

What is a Community Property State?

Community property laws make it so that whatever items accumulated during marriage and jointly owned—regardless of how it is titled.

COMMUNITY DEBT

For example, if you are married and your wife opens a credit card—in ONLY her name—takes the new credit cart and goes on a shopping spree and racks up $10,000 in debt, guess what? You just became half owner of that credit card debt! For this reason most couples in Arizona file for bankruptcy jointly.

COMMUNITY ASSETS

A second example is if you were to go down to the Chevy dealership and pay cash for a shiny new Corvette—and title it in only your name—your spouse just became half owner of the new car!

NON-FILING SPOUSE’S NON-EXEMPT ASSETS

Additionally, all assets of the non-filing spouse must also be included a.k.a “listed” in the bankruptcy. Why does this matter? Well your spouse may own non-exempt assets and they may be subject to confiscation by the bankruptcy court. Non-exempt assets can be a wide variety of “things” both tangible and intangible. A non-exempt asset could be a second home, land, time-share, stocks, bonds, certificate of deposits, motorcycle, boat, etc.

Considering bankruptcy and divorce?

Are you married and considering bankruptcy and divorce? Then you may be wondering if it is better to file bankruptcy and then divorce or if it is better to file for divorce and then file for bankruptcy. Generally, we recommend to file bankruptcy jointly and then file for divorce. Why?

One of the benefits to filing for bankruptcy while still married is the cost. The cost for a married to file bankruptcy is the same as it is for a single person. Meaning that if you wait until you are divorced to file bankruptcy, both you will pay separate attorneys, filing fees, bankruptcy classes, etc.

Another benefit to filing bankruptcy while you are still married is that you will have a clean slate once you are divorced. If you file bankruptcy first, then all of your debts will be discharged. Then when you file for divorce there won’t be any debts that the judge has to split between you and your ex-spouse.

Alternatively, if you and your spouse decide to get a divorce and then file for bankruptcy the family court judge will have to split the debts between you two. And what if after the bankruptcy your ex-spouse stops paying on their portion of the debt and doesn’t file for bankruptcy? It just makes a cleaner break if you file bankruptcy and then file for divorce.

If you would like to set up a consultation with an experienced bankruptcy attorney then contact the Dunaway Law Group at 480-702-1610 or message us HERE.

* The information provided is informational only, does not constitute legal advice, and will not create an attorney-client or attorney-prospective client relationship. Additionally, the Dunaway Law Group, PLC limits its practice to the State of Arizona.

Statement of Intentions in Bankruptcy

With any chapter 7 bankruptcy petition it is required to file a “Statement of Intentions”. This Statement of Intention(s) requires debtors to declare what they intend to do with property connected to their secured debts.

One option on the Statement of Intentions is to reaffirm the debt. Reaffirming a debt means that you agree with a creditor to make yourself liable for the total amount of the debt regardless of the value of the property.

You must act on your specified intentions within 45 days after your 341 hearing. Section § 521(a)(6) of the bankruptcy code states the consequences of failing to act very clearly:

If the debtor fails to so act within the 45-day period referred to in paragraph (6), the stay under sections § 362(a) is terminated with respect to the personal property of the estate or of the debtor which is affected, such property shall no longer be property of the estate, and the creditor may take whatever action as to such property as is permitted by applicable non-bankruptcy law…

If you indicate that you want to reaffirm your debt on your Statement of Intentions, but then never enter into a reaffirmation agreement within 45 days of your creditor’s hearing, the automatic stay is lifted and creditors are free to do as they please within the law. So bottom line: either enter the reaffirmation agreement after seriously considering the potential consequences, or amend your statement of intentions in a way that best serves your interests.

If you need help from an Arizona bankruptcy attorney then email us at [email protected].

Objections to Bankruptcy Discharge

Can an interested party object to your discharge?

Bankruptcy Discharge of Debt:

What is a bankruptcy discharge of debt? A discharge is a release of a debtor from personal liability for certain dischargeable debts. A discharge releases a debtor from personal liability for certain debts known as dischargeable debts and prevents the creditors owed those debts from taking any action against the debtor or the debtor’s property to collect the debts. The discharge also prohibits creditors from communicating with the debtor in any form in an attempt to collect on the debt. This includes communication via texts, email, phone calls, letters or person contact.

In a typical Chapter 7 bankruptcy case, a discharge order is entered by the bankruptcy court roughly 70 to 90 days after the § 341 hearing. However, just because a discharge order has been entered doesn’t mean that it can’t be objected to by your Trustee, the United States Trustee, or a Creditor. An Objection to a discharge is very usual, however, there are several common reasons a party will object.

Reasons for Objecting to Discharge

The most common reason for the objection of a chapter 7 bankruptcy discharge is for “fraud or misrepresentation of material facts”. Trustee’s and their staff are very skilled and masters at reading paper trails. They can spot a liar from a mile away. So my advice? Don’t lie! Not only can you lose your discharge but concealing assets in a bankruptcy is a felony and punishable by up to 5 years in prison!

Another common reason a Trustee will revoke a discharge is for failure to provide additional documentation. A Trustee may ask for additional bank statements, pay stubs, tax returns or documentation surrounding a particular transaction. So just because you’ve received your discharge doesn’t mean you can ignore your Trustee. Give him or her exactly what they ask for exactly when they ask for it. The bankruptcy court’s main form of communication is through the mail. So if you move during your bankruptcy let your attorney know so he can file a change of address with the court. Otherwise the Trustee may be sending you letters requesting additional documents and you will not be able to comply.

If you need help from an Arizona bankruptcy attorney then contact the Dunaway Law Group at 480-389-6529 or message us HERE.

* These blog posts are not intended, nor shall they be deemed to render legal advice. Reading these blog post does not create an attorney-client relationship, nor shall it impose an obligation on the part of the law firm to respond to further inquiry.