In Georgia, BK and debt in both names?

[BKNGA]

Hello to all, my question is regarding debt that is in both my husbands name and my name and how that works in BK Chapter 7. I am going to be filing for BK alone, not my husband. Is there a percentage that one can file in BK or does that mean they cannot discharge any of that debt?

[justbroke]

(I will caveat this with some of this depends on whether your State is a community property State and whether the hypothetical discharge is alive and well in your State. I won't go into either of those factors. Georgia is not a community property State and I don't know if the hypothetical discharge has any caselaw to support it in Georgia.)

You personally will get to discharge the debt. Your spouse will not get to discharge the debt. (See my caveats above.)

That means, that the lender may seek to recover the cost from your spouse because the spouse isn't automatically granted a discharge under 11 USC 524. There is something called the hypothetical discharge, but I won't go into that now.

I would also say that this is marital property (joint tenancy or other joint ownership), you may be protected as well.

I suggest you consult a good Bankruptcy lawyer in Georgia to determine any exposure your spouse may have. In the case, In re Chang, 163 F.3d 1138 (9th Cir. 1998), it is suggested that there is some liability.

Here's some more interesting things...

. “The nature of a bankrupt’s interest in property is determined by state law.” In re Sinnreich, 391 F.3d 1295, 1297 (11th Cir. 2004).

http://www.ca11.uscourts.gov/unpub/ops/200714128.pdf

My standard disclaimer. I'm not a lawyer. I don't play one on TV and certainly not on the Internet. You should check to see if you can protect your non-debtor spouse from being liable for this debt. From what I read -- not know -- this may not be possible.

[2Bshinyandnew]

Hello to all, my question is regarding debt that is in both my husbands name and my name and how that works in BK Chapter 7. I am going to be filing for BK alone, not my husband. Is there a percentage that one can file in BK or does that mean they cannot discharge any of that debt?

If Georgia is not a community property state...if one spouse files a Ch7 and includes joint debt, the filing spouse gets 100% of their liability to the debt discharged (as long as the case goes smoothly), and then the creditors will look to the spouse who has not filed for 100% of the debt. All of it. The whole shebang. Believe me, I know Even though my husband and I have been separated for 2 1/2 years and have filed for divorce, we are still technically married. All those CC bills that used to come addressed to Mr. and Mrs. 2BShinyandNew, now come addressed to Ms. 2BShinyandnew. Mr. 2BShinyandknew owes zero.

Sounds terrible, but I will be filing on my own in the future. Have no choice really

[TooMuchCredit]

So since Georgia is not community property, if the debt is only in one of the spouse's names, if that spouse files Ch. 7, the other spouse will not be liable? I have a relative who is in the middle of a nasty divorce and she is just barely squeaking by. She needs to file Ch. 7 but doesn't want to if it will complicate her divorce.

[justbroke]

So since Georgia is not community property, if the debt is only in one of the spouse's names, if that spouse files Ch. 7, the other spouse will not be liable? I have a relative who is in the middle of a nasty divorce and she is just barely squeaking by. She needs to file Ch. 7 but doesn't want to if it will complicate her divorce.

Divorce is another part of the equation that really muddies things. You can't discharge certain things that are tied to a dissolution. It's too complex for me to even try to being to describe the various issues with divorce and debt.

Generally speaking, in non-community property States, such as Georgia, the non-filing spouse (also known as the non-debtor spouse) would be held liable for shared debt.