Divorce and Ch. 13

[brtb]

I'm consulting with an attorney tomorrow about filing for divorce from my husband of 16 years. I discovered three suspicious voicemails from a woman on his cell phone plus 1000+ texts between him and her over the last month.

We are currently half way through our Chapter 13. I'm flat broke, but I do have a 401K plan. The company I work for lets employees take out loans on their 401K and it gets paid back over a period of months/years with an amount taken out of every paycheck. I've done this before and it works out for me. Plus, I've been with my company for 13+ years.

Can I still take out a 401K loan while in Ch. 13? Our attorney said no credit cards over $1000, but are 401K loans difference?

Also, has anyone else been through this? The stress is compounding.

Thanks.

[13for60]

Technically, you're not supposed to obtain any credit during your CH13. 401k loans are under the radar, so ultimately the risk is up to you.

[LadyInTheRed]

I am so sorry you have to go through this, brtb!

My attorney told me that I could take a 401k loan because it is a loan from myself and not really incurring debt. He did ask questions to make sure making payments wouldn't jeopardize my plan.

Call your BK attorney and ask before you take the loan. I suspect my attorney was basing his advice on a 9th Circuit case where the court rules that payments on a 401k loan could not be deducted as an expense on the Chap 7 means test because it is mearly a loan to yourself. Here's a link to the opinion that sites opnions in other circuits: http://cdn.ca9.uscourts.gov/datastor...9/08-55301.pdf

You should also talk to your BK attorney about whether your plan should be modified due to the divorce.

[df04527]

What an awful thing to discover. My heart goes out to you. Sounds like you are getting your ducks in a row though.

[dmc-2008]

Yes that's a bad deal after so much time, I am sorry! Good luck with a fresh start!

[brtb]

Thank you all so much for your support. He's not cooperating and throwing it in my face that he's with this woman overnight. I'm not going to get into that here....

However, I was advised that because of the Ch. 13 that we need to meet with our bk atty first before we can retain divorce attorneys. I've set up a meeting for both of us to meet with him on Mon. I'm hoping my husband doesn't bail. I really would love some advice on how to get through this if he doesn't cooperate. If he doesn't show up, I'm going to have to find a new bk atty and he will, too.

Also, does anyone have an referrals for bk attorneys in the Northern VA area, just in case?

Thanks!

[brtb]

Update: Just retained a divorce atty. She's going to look into bifurcating the Chapter 13. Has anyone been through this?

[justbroke]

Update: Just retained a divorce atty. She's going to look into bifurcating the Chapter 13. Has anyone been through this?

I've read about it, does that count? I'm interested to hear some real life experience with a bifurcated Chapter 13. I could not even imagine being in Chapter 13 and obtaining a divorce resulting in a bifurcated case.

Are you thinking of bifurcating and then converting to Chapter 7?

[AngelinaCat]

I, too, am sorry to read of your situation. I have nothing to add at this point, except moral support.

ETA: I just removed the post by 'disabledbut'. This person has been banned by another Moderator. Therefore, I removed the post because it had nothing to do with the discussion at hand, and served only as a vent for the poster's hate and vitriol.

[brtb]

JustBroke - I thought bifurcate just meant to separate the bk. Since we're 2 1/2 years into the Ch. 13 I would like to just separate the bk and continue as planned. I just did some basic research on Nolo and it made it sound easy. However, I'm also open to converting to Ch. 7 if I can. I make less income than he does. However, I've been keeping the mortgage current so I would hate to lose the house. Lots of things still up in the air at this point.

On the divorce side of things my husband is not doing anything. After I told him I retained an atty he's just going on about his business as usual and continuing to see his girlfriend. He's hasn't even consulted an atty. The weird part is that he's the one who has been threatening to divorce me for years and never followed through. I'm so glad I finally took the first step.

[brtb]

I just wanted to point out one more thing about our Ch. 13 if anyone has any input.

We're not in a 100% plan. We have one joint secured debt, which as of 12/2/13 we only owed $800 per the NDC website. Everything else is individual credit card debt and my student loan (I know that's not dischargeable).

Thoughts?

[kjrmom911]

My only thought is this. Do you live in a community property state? If so, were these individual credit cards opened after you were married? If so, it does not matter whose name is on them, they belong to you both.

[LadyInTheRed]

JustBroke - I thought bifurcate just meant to separate the bk.

Yes, that's what it means.

Since we're 2 1/2 years into the Ch. 13 I would like to just separate the bk and continue as planned. I just did some basic research on Nolo and it made it sound easy. However, I'm also open to converting to Ch. 7 if I can. I make less income than he does. However, I've been keeping the mortgage current so I would hate to lose the house. Lots of things still up in the air at this point.

If you qualify to convert to a 7, I believe you would do that after your case is bifurcated. Converting to a 7 does not mean you lose the house as long as any mortgage arrears has been cured, you keep up the payments and you don't have any non-exempt equity in the house.

[brtb]

Yes, that's what it means.

If you qualify to convert to a 7, I believe you would do that after your case is bifurcated. Converting to a 7 does not mean you lose the house as long as any mortgage arrears has been cured, you keep up the payments and you don't have any non-exempt equity in the house.

I need to check into the non-exempt equity. Home sales/values are going up where we live. Thanks! I'll keep everyone in the loop. I'm not I won't be the only one going through this at some point.

[brtb]

My only thought is this. Do you live in a community property state? If so, were these individual credit cards opened after you were married? If so, it does not matter whose name is on them, they belong to you both.

We live in VA.

I'm fine with if we have to split everything 50/50 as long as I have no ties to him whatsoever.