Community Property States

[optimistic1]

Love this ruling!

These provisions for nondischargeability and objection-to discharge actions directed at the nondebtor spouse are, however, subject to a diligent creditor requirement. The failure by creditors to raise nondischargeability and discharge objection issues in a timely manner in the case of the debtor spouse will allow the community property discharge to be effected.

[optimistic1]

Also,

This case show you how it can prove to protect non filing spouses to certain extents. It also highlights how, if creditors do not object to dischargeability it will relinquish the non-filing spouse. Pay close attention to pages 9-12 as this where it highlights how a creditor lost their rights to object to the non-filing spouse's dischargeability. This case in particular shows you that you can always try to file a 7, and if creditors dont object, you get away with it.


http://207.41.19.15/web/bap.nsf/F261D6E4B839EE2E8825739A0004C2B1/$file/Kimmel-07-1152.pdf?openelement

[optimistic1]

commenced within six years of the date of the filing of the petition in the case concerning the debtor; and

(B) the court does not grant the debtor’s spouse a discharge in such case concerning the debtor’s spouse; or

(2)

(A) the court would not grant the debtor’s spouse a discharge in a case under chapter 7 of this title concerning such spouse commenced on the date of the filing of the petition in the case concerning the debtor; and

(B) a determination that the court would not so grant such discharge is made by the bankruptcy court within the time and in the manner provided for a determination under section 727 of this title of whether a debtor is granted a discharge.


The way I read this, is its holding you to two rules here, one is a 6 year rule, but then it goes on to say if you would be filing with your spouse, and you filed within 8 years then you would not receive a discharge either.

This is the main reason why I am doing a Chapter 13, because I would not be protected, the same would go for you.

The question is,

Would the creditors know about this, probably not, so its worth a chance. Because, on the creditor schedules in the petition, no names would be listed, just account #'s and address's. Only your income would be included, and asset's.

Here are some more helpful links.

Case law,

http://www.wieb.uscourts.gov/index.php?option=com_docman&task=doc_download&gid=286

Community discharge article, read where it talks about 524.

http://www.marleneweinstein.com/indexpage_7/Articles_2.shtml

[shaedes]

Thanks for the info. Keep us up to date , I would really like to know how things turn out for you. Is your case still open, if so, when do you expect it to be resolved? Thanks

[optimistic1]

Youre right, but the hypothetical discharge for the community spouse who isnt filing, the creditors have an argument, to which they probably wont argue anything. You would be getting through two loopholes if that was the case, I just wouldnt be so optimistic at this point. You are where I am.

[shaedes]

I thought maybe because ca was a community prop state, that the court would see his filing as that of the community and not that of an individual. Am I wrong? Would he have to list my debt on his paperwork as well or not? It wouldn't matter too much as I don't have a lot of debt, and we could manage it fine. Thanks for the input.

[optimistic1]

There is an argument to that, and it would be if the trustee/judge caught it or not. I remember reading in the code somewhere about it wouldnt be, because technically you cant discharge yours because you filed 8 years ago, even though you aren't on the petition. That is exactly what I am trying to do, but its a very complicated question that only highly experienced lawyers could tell you. I have not come across many of those, but they do exist.

[shaedes]

My hubby wants to file ch 7. We have been married 5 yrs, and I had a bk discharged a few months before we married. Since we live in California, can he still file ch 7 and have my debts(that were acquired during the marriage) discharged too?

[doudis2]

You know I bet he said this because we are keeping two cars. I will make sure though before we file in May.

Thanks for the reply!

[optimistic1]

...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/findspecialist_text.cfm

[doudis2]

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.

[optimistic1]

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!

[optimistic1]

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!

[BKman]

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.

[OweTooMuch]

HI Optimistic1 - Excellent information. Thank you!