Filing as married when living apart?

[ThisCantGoOn]

First, I would like to thank everyone on the forum. The information here is really great. I’ve been lurking around here for about a month now. I realize my case is much complicated that I originally thought. Here are basic facts.

Family/Living Situation:
Living in Nevada past 3 years.

Separated from wife past 12 months (Planning for a divorce in March 08, need to stay married for step daughter age 20 medical reasons, still under my insurance. Afterwards she will be getting married & will drop from my insurance.)

Step daughter and her son living with my wife (My wife & I have guardianship of the son).

I’m currently living at friend’s property acting as an unpaid caretaker (no pay/no expenses.) Once the BK is finished I plan to move out of state.

Financial Situation:
We tried to sell our house from Dec 06 to May 07, zero offers, then we had renters from Jun-Oct 07 (they stopped paying rent in Aug/all utilities were paid with bad checks; we had to pay for them.) My wife/step-daughter/grandson moved back into the house in October 07.

We owe $229,000 on the house; I checked the value on-line it’s down to $272,000 from a high of $300,000+. I don’t believe it will sell for $230,000 in today’s Las Vegas market.

Monthly Bills
$1633 house (Owe $229K/Est appraisal $272K) real value $200-$230K maybe?
$ 171 Student loan (Owe $11K)
$ 160 ATV (Owe $13K surrendering)
$ 450 Wife’s CC (Owe $24K)
$ 1343 My CC (Owe $50K)
$ 0 two cars 2003 Jeep/1999 Taurus (both under NV's $15K)

My monthly income $3746, wife monthly income $1760. Total $5506, just under the means test for family of 4.

Questions:
I now believe that we should also surrender the house, it’s killing us. Because the appraisal value is $43K above the amount we owe is this going to cause trouble in a chapter 7?

We are currently planning on filing together then getting a divorce after the BK (Chapter 7) is finished. If we are forced into Chapter 13, is it possible to “timeout”, get the divorce and have the repayment plan structure on our own income/expenses? Or would that be done with some type of amendments after the divorce?

Is 20 year old daughter living at home counted in number of persons living in household? She a has job, but doesn’t pay real rent (gives some money to wife for living expenses, no contracts, etc…) I assume we can still file together since we are still married even though we are living apart?

[genseeker]

You can file together, but each of you will have to file your own seperate Schedules I & J. I remember reading that when I was preparing our paperwork.

[lrprn]

My monthly income $3746, wife monthly income $1760. Total $5506, just under the means test for family of 4.

$3746 + $1760 = $5506 x 12 = $66,072. The median income for a family of 4 in Nevada is $66,092 - http://www.usdoj.gov/ust/eo/bapcpa/2...come_table.htm . You are right on the line...wow!

I now believe that we should also surrender the house, it’s killing us. Because the appraisal value is $43K above the amount we owe is this going to cause trouble in a chapter 7?

Being upside on your home loan won't matter at all. I'd be more concerned about being so close to the median. $20 is no safety net whatsoever!

If we are forced into Chapter 13, is it possible to “timeout”, get the divorce and have the repayment plan structure on our own income/expenses? Or would that be done with some type of amendments after the divorce?

There are no "time outs" in Ch 13. If you file then divorce, your lawyer will file an amended case that incorporates your changed financial conditions.

You need to set up free or low-cost appointments with several bankruptcy lawyers in your area. It's important that you figure out which is going to work out best in your situation - divorce then file bankruptcy, or file then divorce. It depends on your financial situation and your soon-to-be-ex's financial situation.

Is 20 year old daughter living at home counted in number of persons living in household? She a has job, but doesn’t pay real rent

Our at-that-time 22 year old was living with us when we filed (she was not a student). She counted as a member of our household.

I assume we can still file together since we are still married even though we are living apart?

As long as you are still married, you can file together. However, since you two are paying for two households (two rents, two sets of utilities, etc), you need legal advice about this is going to play with the trustees in your local bk court.

Glad you came out of lurk mode, TCGO! Keep asking questions - we'll help you sort things out as best we can.

[SinkingFast]

If your bank statements, paystubs, and such don't reflect you still live together, it's gonna be hard to file together.

Bank statements showing your pay deposited into a joint checking acct. Your house address listed on your paystubs. That sort of thing.

Otherwise, you might have to split the family and file separate. You claim 1 child and STBX wife claims 1 child. Or you claim both children and STBX claims herself only. You'll both be below the Median for Nevada and qualify to file a Ch 7.

Personally,............. If you're gonna give up the house and ATV in BK,........... I'd file BK first. Discharge your joint debts. Then file for Divorce. It'll make property settlement much easier.

Also, if your STBX is entitled to any retirement monies from you,........ It's best to have those transfered into an ERISA qualified acct prior to filing BK, or just leave them where they are. If you file BK and don't wait until 180 days pass to get Divorced, the Trustee could go after your STBX's part of your retirement monies.

I have a GF who's caught in this mess right now. Filed for Divorce. Then filed for BK before the division of assets occurred. She was awarded 401K monies post petition and the Trustee is hot to trot after the money.

No Divorce AND the BK is still open and active. GF is living in a nightmare.