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Husband filing Chapter 7, wife cannot

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  • Husband filing Chapter 7, wife cannot

    I have a friend who lives in Michigan, separated from husband, who is trying to gain residency in Vegas. They own a home (in Michigan) and he wants to file individual Chap7 to avoid paying back some personal credit cards he used for his now failed business. She cannot file, she makes too much money. When he files, what happens to the home? My friend is concerned she will lose the home. If he wants to relinquish his obligation to the home, does he need to remove his name from the title?
    What advantages are there to him filing in Nevada vs Michigan?

  • #2
    We really discourage people from coming here to ask questions for somebody else. Only your friend knows all the details of his situation. It's too easy for misunderstandings to happen when conveying information through an intermediary. That said, I'll try to answer some of your questions.

    Making too much money does not alone disqualify somebody from a Chap 7. Is the couple legally separated? If not, the wife's income might be taken into account in the husband's BK.

    If he has non-exempt equity in the home and can't afford to buy his interest from the trustee, the trustee could force a sale in a Chap 7. He cannot transfer his interest in the home to her before filing BK. If he does, the trustee can "avoid" the transfer and get his interest back from the wife.

    He has to file in whatever state he lives in at the time of filing and I believe he would use that state's median income and local standards for expenses when completing the means test. But, if he moves to Nevada and files BK there, he may still have to use Michigan's property exemptions. This article will help determine how long he'd have to live in NV before using NV exemptions and in what situation he could use either state's exemptions, so would use federal exemptions: http://www.nolo.com/legal-encycloped...new-state.html

    An attorney would have to advise what are the advantages of filing in one state or the other. Other than exemptions, there could be differences in law between the two states that would effect his BK based on his specific situation. If he is basing the timing of his move on BK, he should probably consult with a couple of attorneys in each state. Most BK attorneys give free consultations.
    LadyInTheRed is in the black!
    Filed Chap 13 April 2010. Discharged May 2015.
    $143,000 in debt discharged for $36,500, including attorneys fees. Money well spent!

    Comment


    • #3
      I almost forgot to say that if the couple is not legally separated and their debt is more than 50% non-consumer debt (i.e., it was incurred for business), they wouldn't have to pass the means test for a Chap 7, so the wife's income would not be an issue. Keep in mind that a home mortgage is considered consumer debt. That alone usually will tip the scale towards consumer debt. For more on what is considered consumer and non-consumer debt, go to http://www.nolo.com/legal-encycloped...eans-test.html As you will see, what is considered consumer debt is one thing that may depend on what state the debtor is in.
      LadyInTheRed is in the black!
      Filed Chap 13 April 2010. Discharged May 2015.
      $143,000 in debt discharged for $36,500, including attorneys fees. Money well spent!

      Comment

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