June 3, 2010
-- Yesterday I met with a client who stopped by our office to ask us about getting a divorce from his wife. Most people don’t understand that when you file bankruptcy all other court proceedings stop, including divorce. I explained to him that a motion to lift the stay for the purpose of getting a divorce would be needed. The problem with us filing the motion is that we represent both the husband and the wife in their bankruptcy. I explained that without the consent of both parties, we are not able to file the motion.
I suggested that he seek advice from an attorney that handles divorces. Once he gets a divorce attorney, that attorney would be able to file the motion on his behalf since he would only be representing the husband. My client was also concerned about the trustee payment. He is in a Chapter 13 and the trustee payment is being garnished entirely from his check. He wants to move out of state once the divorce is finalized, and does not want to continue to pay the trustee for a house he won’t be living in and a car he won’t be driving.
Since he will be moving out of state, he will be quitting his job and getting a new one. I explained that once he quits his job, the trustee payment will not be coming out of his check and it will then be the responsibility of him and his wife to pay. If the payment doesn’t get made, their case will get dismissed. I looked at their income and budget, and it doesn’t appear the wife will be able to make the house payment, the trustee payment, and all the other necessary bills. I suggested that he talk to his wife about what they are going to do with the house before he makes any decisions. I also told him he would need to talk to a divorce attorney to find out what his options are with regards to the marital property.
It is always difficult when a married couple files a joint bankruptcy and then wants to get a divorce in the middle. There is the option of severing the case, but in my clients case he didn’t want the stuff being paid for through the bankruptcy and his wife is not able to make the payment on her own. Their best option might be to surrender everything or get current on it and convert to a Chapter 7.
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for your reading enjoyment.
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