Forum Rules (Everyone Must Read!!!) (updated: 04/28/2015)

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Getting Divorced and have no clue. HELP

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  • Getting Divorced and have no clue. HELP

    My wife and I have decided to get a divorce. I'm 50 years old. At the moment, we are barely paying our debt. We have 3 kids, a mortgage, and 2 car payments. We have completely gone through our savings to keep current on paying our debt. We have credit cards, unsecured loans, and a combined student loan as well. My wife wants to keep the house so the kids can finish high school in a stable environment. We have moved 3 times in the last 5 years, so I can see her point. I want to file for bankruptcy (but not sure 7 or 13). She does not want to because she wants to protect her credit and possibly get a college loan for our oldest child who is currently a senior in high school. She makes more money then I do. I know there is no way after the divorce I can pay rent, one car payment, child support and any of my debt. I want to stay near the kids so that means staying in San Diego county.

    I get paid every 2 weeks and clear around $3000 each pay period. So for 10 months of the year, I'll have around $6000 a month. The cheapest rent in my area (either apartment or house rental) is around $2500/month. Yes, southern CA. I'll need a car in order to help with the kids and for me to get back and forth to work. The car payment is around $520/month. Based on alimony calculators, I will have to pay around $1000/month. That leaves me $1980/month before utilities. Monthly payments on credit card and unsecured loans in my name total $2700. So, that would leave me -$720/month for 10 months to eat and pay utilities. So it would be impossible in my current state. Additionally, The student loan is in both our names and is around $500/month. Even is I take the $3000 each pay period and multiple by 26 then divide by 12, that's a net income of $6500/month. Then minus out rent, car, and debt, that still leaves me -$220/month.

    I don't know what's my best option (file for 7, 13, or don't file and just stop paying all debt except car and mortgage). If I should go Chapter 7 or 13 route, should I file before or after the divorce?

    I know I need to do something, I'm just not sure what. Any advice offered would be greatly appreciated.

  • #2
    I just want to make sure you know, when doing your calculations, that the student loan is *almost never* dischargeable. It wasn't clear when I was reading your post whether you were aware of that or not, so I just wanted to clarify. Someone will have to continue to pay it.

    I'd definitely start talking to attorneys. Take the time to go for some free consultations. You'll have a lot better idea where/how to focus as you gather information from them.


    • #3
      You have some complications therefore you and your wife really need to sit down with an attorney. You live in a community property state. With a few exceptions, there is no such thing as "my debt" vs. "her debt". Further, her income is your income and your income is her income so both will need to be reported in determining your "current monthly income" and Schedule I (unless you are living apart - which brings in some additional issues). Obtaining a divorce before filing creates other issues dealing with 11 USC 523(a)(15) and Chapter 7.

      If your wife thinks that by staying out of bk her credit will not be impacted, she needs to think again. While a bk should not be reported on her credit report if she does not file, all of "your" creditors will continue to collect against her. While you remain married your discharge will stop them from garnishing/seizing community assets but, once divorced the community is over and each creditor will be free to pursue her regardless of what the divorce decree states. At that point she will have wished she had filed and gotten things over with.

      Assuming the two of you are still "civil" to each other and the lines of communication are open, show her this post. While she may eventually decide not to file bk, the two of you really need to consult a bk attny to find out all of the ramifications. Then both of you can make an informed, intelligent decision - one neither of you will regret down the road.



      • #4
        I can understand your problem. I'm going through a divorce now, but I live in NC, i HAVE TO WAIT A YEAR BEFORE DIVORCE IS FINAL. December is almost here. Anyway, I would file chapter 13 if I were in your situation and in California, you'll have to talk to an attorney. Do it before the divorce.
        I wish I knew other people who've gotten divorced while in a chapter 13 and what happened with their case. I filed separately, because I knew I wanted a divorce. The only issue I have is a car I purchased for her as a gift that I'm still paying for since she don't have sufficient credit.


        • #5
          I wanted to provide an update. I spoke with several attorneys and the advice I received was to file for divorce first and outline in the divorce agreement who would own what debt. I was told once the divorce became final, it became a legal document. Then I could file for Chapter 13. The court would look at my income then subtract rent, and debts I wanted to maintain (car payment student loans), and a "federal living allowance." Whatever was left over would go into a payment plan to my debtors. I said that would leave some of the debtors getting very little. I was told that in some cases, they see some of the debtors get pennies each month. Also, I was told to find a nice place to stay before I file for Chapter 13 because I would want to have a place that my kids could come visit and stay. She said that the court would be okay with that. If I went with a dirt cheap place or a place that I felt good for the kids, the amount of money I would have each month would not change because that is determined by a federal standard. Has anyone received similar advice in CA?


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