Couple filing separate bk 7/13

[toomuch]

I have brought this up before but can't find the link.

I have 60k in unsecured cc debt. I have a car which I am surrendering. I am on the deed to our house but not the loan.
On the first consult with an attorney, she said I could file a 7, no problem.

Hubby also has about 60k in unsecured debt in his name only, plus a truck he will probably keep. He makes over the median for a 2 person household, so a 13 is probably what he will end up filing.

We have no equity in our home, no second mortgages, etc...

Does it make sense for me to file a 7 and he a 13?? He will have less total unsecured debt. He will be tied up with the plan for 5 years but I wouldn't.

I know it would cost more in attorney fees, but wouldn't it be better for one of us to start building good credit asap?

Any thoughts on this? 2 other attorneys said we both had to file a 13 but I don't believe that.

Thanks,

Toomuch

[HHM]

I'd wonder if they would even let this happened...I may side with your attorney's on this one. I am trying to reason through how that would work with the various requirements for chapter 7 and chapter 13, and I can't see how, with a married couple, one spouse could file a 7 and the other a 13 at the same time.

What you may want to ask an attorney about is this...assuming you qualify for a Chatper 7, you file chapter 7, your spouse does nothing. Once your Chapter 7 is discharged, then your spouse could file a chapter 13.

Keep in mind, the law is designed to try to get everyone into a chapter 13, if your spouse cannot qualify for a 7, then you, even filing seperately, will have a hard time qualifying for chapter 7. Your spouses income counts toward your chapter 7 analysis (granted you can back out his share of expenses), but if at the end, there is still money left over, you will be in a chapter 13. Without more info, it's hard to say one way or the other, but realize that if your spouse could not qualify for a 7, your chances of getting 7 are less then they otherwise might be.

Even in a non-community property state, a married couple is a single entity vis-a-vis the rest of the world. Even though you can title assets and debt seperately, that does not really create a significant legal barrier regarding your responsibilty for your husbands debts and vice versa. (same goes with assets).

[spell]

First, make sure the attorney actually runs the means test before you resign yourself to Ch13. Being over the median income triggers the test, you can still pass the test. In many ways it's quite lenient, especially if you're close to the median.

Second, the median income triggers are based off of household income. Unless you and your husband operate separate households (didn't sound like it) you will have the exact same results on the means test.

I'm guessing you either both qualify for 7 or both need a 13.
I'd say drop the lawyer who thinks you can do both.