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Community Property States

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  • #46
    I have read that AMEX accounts sometime will have stipulations in the contract that will legally bind any authorized users to also be liable for the debt. How much of it is the question, will they have the ability to differentiate between the two cards? Most likely. Will they go through the trouble of pursuing the authorized user? Probably not.


    @ Bellesima


    I would include his debts, if possible on your petition, being that you are no longer married, this will relinquish you from being liable.

    Yes, I would include his debts, because once you divorce one another
    As legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for the advice of competent legal counsel.

    Comment


    • #47
      I live in Nevada. I'm going to file but my wife isn't. I'm going to file on my creditcards and the reserve line on our joint checking. My attorney said that if I go chapter 13 or chapter 7 that they cant go after her because the bankruptcy will clear the debt from both of us. Is that true, or is he full of crap?

      Comment


      • #48
        I have 6cc's in my name my spouse has 7cc's in her name. in az. a community prop state. can I file 13 in my name only? If I can and I file naming all 13 is she clear on the credit report?

        How do i go about filtering through all the atty's to find the best one ?

        Comment


        • #49
          Originally posted by BKman View Post
          I live in Nevada. I'm going to file but my wife isn't. I'm going to file on my creditcards and the reserve line on our joint checking. My attorney said that if I go chapter 13 or chapter 7 that they cant go after her because the bankruptcy will clear the debt from both of us. Is that true, or is he full of crap?
          No he is not full of crap, he is talking about exactly what I have been trying to get through peoples heads about community property states, this whole thread is about it. That just reiterates my point and it is coming from the horses mouth.
          As legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for the advice of competent legal counsel.

          Comment


          • #50
            Originally posted by branainaz View Post
            I have 6cc's in my name my spouse has 7cc's in her name. in az. a community prop state. can I file 13 in my name only? If I can and I file naming all 13 is she clear on the credit report?

            How do i go about filtering through all the atty's to find the best one ?
            Its definitely plausible, I had an experienced attorney tell me exactly that, he told me that is what community property is all about, he said there is an argument there, because both of you are seen as one sole entity during marriage. So if the debt was incurred during marriage (community), then theoretically one could file for both and both would be discharged. Read the older posts I have on this thread.
            As legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for the advice of competent legal counsel.

            Comment


            • #51
              HELOC Loan & Community Property?

              Hi - I am going to file BK alone. I have only been married a few years and we do not have ANY joint accounts. I did take out a HELOC on my existing house and my husband had to sign a waiver indicating that the house was my sole and separate property. He was on on the application and did not sign anything. Is he liable for this loan? I am thinking it won't be an issue but want to make sure.
              Over Median Chapter 7 Filed (No asset case) - 341 Held - Discharged & Closed Jan 2012

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              • #52
                Liable yes, even with the waiver, if the debt was incurred during your marriage, but its dischargeable, even if only 1 person files for BK. In California, like other community property states, a married couple is one entity, it doesnt matter who's name is on the paperwork, you are both equally liable for the debt. Likewise, you are both equally absolved of the debt if only one person files for BK. Got it?
                As legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for the advice of competent legal counsel.

                Comment


                • #53
                  Hi Optimistic1 - Thank you for your reply - I appreciate it! I think that Community Property states are kind of scary.
                  Over Median Chapter 7 Filed (No asset case) - 341 Held - Discharged & Closed Jan 2012

                  Comment


                  • #54
                    Here is some more information, got it from a california bk attorney. Some of the points noted here are a little contradictory, because in one instance, its says you are not protected, and in the next it says you are but to a certain extent.


                    How is my spouse affected if I file bankruptcy alone?

                    Since a bankruptcy can be filed by one spouse without the other, this is one of the most common bankruptcy questions. There are several aspects of the answer.

                    A bankruptcy filing by one spouse does not bring the other spouse into bankruptcy. Neither does the bankruptcy of a spouse give the non filing spouse the full protection of the automatic stay or the bankruptcy discharge.

                    Joint debts



                    Generally, marriage alone doesn't make both spouses personally liable for a debt. Liability on contracts such as home loans and credit cards arises by agreement between the creditor and the debtor. Only persons who signed the loan or credit application are liable for the debt.

                    A joint tax return, however, makes both spouses liable for the total of the tax due.

                    If you have joint debts, you can expect the bankruptcy to be noted in some way on the credit record of the non filing spouse. There is uncertainty in the law at the moment as to whether it is proper to mention the bankruptcy of one debtor on the credit report of a debtor who is not in bankruptcy.

                    Joint property

                    If you and your spouse own property together, that property may be included in the bankruptcy estate and be potentially available to pay creditors. In community property jurisdictions such as California, both halves of the community property comes into the estate: all of the community property is available to pay community creditors and any other creditorsof the spouse who has filed. So the filing of one spouse could have significant impact on the other.


                    Community property discharge

                    When one spouse files bankruptcy in a community property state, the marital community enjoys the protection of the filing spouse's bankruptcy discharge. Section 524 of the Bankruptcy Code provides that any community property that the filing spouse and the non filer acquire after the bankrutpcy is protected from creditors of the non filer who held a claim against the non filing spouse as of the date of the filing.

                    A creditor with a claim against the non filing spouse can only collect its debt from the separate property of the non filing spouse. In California, that separate property is comprised of assets acquired before marriage; assets acquired by gift during marriage; or assets acquired by inheritance.

                    Creditors, despite the fact that the community property discharge has existed since at least the passage of the Bankruptcy Code in 1978, have a hard time believing that someone in a community property state gets the benefit of their spouse's bankruptcy discharge, but that's the law.


                    Credit reports

                    Each person has (or is supposed to have) a separate credit file for credit reporting purposes. Your debts, if yours alone, are not supposed to show in your spouse's credit file. Similarly, your bankruptcy should not show in your spouse's file if you have no joint debts.

                    Even so, it pays to monitor your credit file, since credit reporting, like so much else in life, does not always follow the law.

                    Future credit

                    The bankruptcy of one spouse will have some effect on the credit worthiness of the non filing spouse if they apply jointly in the future for a loan. The loan grantor will consider the credit rating of both applicants in making a lending decision. More on post bankruptcy credit.
                    Last edited by optimistic1; 01-19-2010, 02:55 PM.
                    As legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for the advice of competent legal counsel.

                    Comment


                    • #55
                      HI Optimistic1 - Excellent information. Thank you!
                      Over Median Chapter 7 Filed (No asset case) - 341 Held - Discharged & Closed Jan 2012

                      Comment


                      • #56
                        I'm in Nevada, a community property state. This is what my attorney and every other attorney said about the laws for our state. I filed and my wife didn't. The CC debt is under just me, the bank reserve line is on a joint checking accout (now closed). We put all of my income, all of her income, her 401K information, her stock information, our tax returns, our bank statements, her bank statements, and all of our assest (home, cars, property) in the BK. We listed everything we have from the time we got married. Under a chapter 13 or a chapter 7 she is protected from the creditors. Joint and non joint because we listed everything. Now if she owned something before we got married then the joint debt could go after that. If I die or we are not married anymore then they "may " go after her for the joint debt. Under a chapter 13 we are protected. Under a chapter 7 we risk the loss of her stocks and maybe one car. I filed this way so if in the furture we need to buy a new car/house or something her credit will still be good. This is on the advice of my attorney.

                        Comment


                        • #57
                          This just solidifies what this whole thread is all about, to properly educate people that live in community property states and what their rights are, disadvantages and advantages to filing single or jointly. Thank you for that post, and you hired a good attorney who knows his/her stuff!
                          As legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for the advice of competent legal counsel.

                          Comment


                          • #58
                            Originally posted by BKman View Post
                            I'm in Nevada, a community property state. This is what my attorney and every other attorney said about the laws for our state. I filed and my wife didn't. The CC debt is under just me, the bank reserve line is on a joint checking accout (now closed). We put all of my income, all of her income, her 401K information, her stock information, our tax returns, our bank statements, her bank statements, and all of our assest (home, cars, property) in the BK. We listed everything we have from the time we got married. Under a chapter 13 or a chapter 7 she is protected from the creditors. Joint and non joint because we listed everything. Now if she owned something before we got married then the joint debt could go after that. If I die or we are not married anymore then they "may " go after her for the joint debt. Under a chapter 13 we are protected. Under a chapter 7 we risk the loss of her stocks and maybe one car. I filed this way so if in the furture we need to buy a new car/house or something her credit will still be good. This is on the advice of my attorney.

                            That just solidifies what this whole thread is all about, hopefully this will properly educate people that live in community property states and explain what their rights are, disadvantages and major advantages to filing single or jointly. Thank you for that post, and you hired a good attorney who knows his/her stuff!
                            As legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for the advice of competent legal counsel.

                            Comment


                            • #59
                              My AZ attorney told me..

                              ...that because we are in a community property state that my wife also must file to prevent creditors coming after her.

                              In our case everything is in my name only and there is a quit claim on the house title. It would be nice if only I had to file, but I have to follow the attorneys advice.

                              Does anyone actually have experience with this scenario in AZ? I'd love to hear how your case went?

                              Thanks.
                              Filed CH 7 - 5/21/10, 341 Meeting - 7/9/10, Report of no distribution - 7/12/10
                              Last day to object - 9/7/10
                              Discharged - 9/14/10
                              Closed - 9/21/10

                              Comment


                              • #60
                                Originally posted by doudis2 View Post
                                ...that because we are in a community property state that my wife also must file to prevent creditors coming after her.

                                In our case everything is in my name only and there is a quit claim on the house title. It would be nice if only I had to file, but I have to follow the attorneys advice.

                                Does anyone actually have experience with this scenario in AZ? I'd love to hear how your case went?

                                Thanks.
                                Your attorney is wrong, I live in AZ and was told by a Certified Bankruptcy Specialist that the creditors cannot come after you, they can, but only to a certain extent, read above and previous posts. There are hundreds of attorneys in the Phoenix area that are practicing BK law, why? Because that is whats hot right now in the Arizona, you see accident injury firms advertising that they now do bankruptcies!

                                You dont have to do anything, what I would do is call several other attorneys, use the link below to help you find a certified specialist, and if need be, disagree with your attorney or go hire someone else. But, I dont know your exact legal/financial picture so I cant judge his decision with so little information.

                                http://www.azbar.org/LegalResources/...alist_text.cfm
                                As legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for the advice of competent legal counsel.

                                Comment

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