California Divorce and Family Law

When Bankruptcy Meets Divorce

Just over two years ago, President George W. Bush signed the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) of 2005, which became effective Oct. 17, 2005. If you are getting divorced, this new bankruptcy law could concern you. Reason: While you may not realize it, in this country, our high divorce rate and bankruptcy commonly intersect.

Here’s how. Until the enactment of the BAPCPA, the bankruptcy process was seen by some, and used by many, as a tool to permanently evade (or, to use bankruptcy terminology, “discharge”) family obligations foisted upon them by agreement or court order after a marital dissolution. Plus, once a person filed a bankruptcy petition--for liquidation under Chapter 7 or reorganization under Chapter 13 (or, less commonly, Chapter 11)--he gained the protection of an “automatic stay,” preventing creditors from taking any actions against him, his income or his property to collect their debts.

Perhaps even more important than the means test and mandatory financial management education is the fact that BAPCPA has made it much more difficult for debtors to shirk domestic relations responsibilities. Unlike the old law (BRA) which, as amended in 1984, allowed debtors to discharge nonsecured property settlement obligations to former spouses (think payouts for businesses, professional practices, or other assets distributed in a divorce), the new law forbids this. Now, any domestic support obligation “DSO” becomes a “first priority claim,” ineligible for discharge. 

Still, scholars see potential areas of abuse. If you have a property agreement or divorce decree wherein your ex assumes existing marital debt (outstanding credit cards run up during your marriage) and agrees to pay the credit card companies directly--“holding you harmless” in the meantime--beware. That obligation might be subject to discharge or reduced payment under the new bankruptcy law. Why? Payments made to a third party, i.e., someone other than, “a spouse, former spouse or child of the debtor” might not receive protection under the new 11 U.S.C. 523(a) (15).

On the other hand, any obligation undertaken in a divorce, owed to a third party and in the nature of support (say, an ongoing mortgage or auto loan) is probably safe from discharge under BAPCPA. Best idea: Insist on having your spouse pay old, nonsecured consumer debt, directly, from his--or her--share of money received from the sale of a house or distribution of other assets at the time of the divorce. A promise to pay is nice, but security (or cash) is king.

BAPCPA also provides “domestic support obligations” first priority status over other nonsecured debt. (But, this fact might not be as useful as it sounds as BAPCPA expands the reach and strength of secured creditors. So, it’s possible less will be left for all unsecured creditors, regardless of priority status.) Furthermore, the automatic stay provisions of the code no longer apply to divorce or support actions filed in state courts. Though you won’t be able to divide the debtor’s property, you will be able to address support, domestic violence and custody matters without having to appear in federal bankruptcy court to “lift” the stay.

Also, under BAPCPA, a bankruptcy filing won’t affect your rights to receive support via wage garnishment or other common collection means. Likewise, pre-filing payments of domestic support obligations to a spouse (so-called “pre-petition transfers”) won’t be “voidable” as preferential payments. Plus, per BAPCPA, no payment plan debtor will receive an order of discharge until he or she confirms that all domestic support obligations are current.

What’s more, BAPCPA requires a debtor to reside in a state more than 40 months before he or she files for bankruptcy protection to take advantage of that state’s exemptions; thus eliminating “forum shopping,” where debtors moved to states like Florida or Texas just before filing bankruptcy petitions, in an effort to convert nonexempt property into an exempt homestead, wiping out their nonsecured debt in the process.

So much for the debtor. As a DSO creditor in the age of BAPCPA, you will receive notice from the trustee of your rights to collect support through federal enforcement agencies. You will also receive the most recent address of the debtor, where he works and details about other affirmed creditors remaining after the bankruptcy action.

While BAPCPA can make life more difficult for those who have suffered from sudden unemployment, sickness or other misfortune, it’s probably the best thing to have happened to unsecured divorce creditors since 1898. Still, BAPCPA is recent law and courts have yet to settle all the issues arising from its new provisions. If your ex files for bankruptcy protection, consult with an expert. Ask how to protect your DSO (domestic support obligation) creditor’s rights by filing any necessary adversary complaints or proofs of claims. For instance, under a Chapter 13 plan, a debtor can still escape paying some, or all, accumulated support arrears, so you must be vigilant.

And, don’t forget to obtain copies of all the debtor’s bankruptcy schedules (disclosing his income, real and personal property, and the like). As BAPCPA provides the possibility of using exempt property to collect what you are owed as a nondischarged creditor, these schedules will be a rich source of useful information. Happy hunting.

Read more at Forbes.com

Advice for Couples Headed for Divorce After Bankruptcy

Staying married is tough. That's one of the reasons so many people give up.

But staying together after a bankruptcy is really tough. Not only do you have your personal issues to work through, but you're constantly getting conflicting financial advice that can put you deeper in the hole.

My wife and I made a promise early on in our bankruptcy that the "D" word wasn't allowed to be uttered in our home.

It must have helped.

Although neither of us has been divorced, we were headed in that direction on a few occasions. There was the time in 1995 that Michele stayed in a hotel overnight without telling me where she was. That was a real wake-up call.

But what would I have done if divorce had ever been an option?

I would have started by reading Mistake 24 on page 47 in Do You Make These 38 Mistakes with Your Credit? Here's what it says:

"A divorce decree does not change the fact that you are a co-borrower on a loan. What typically happens is a couple divides their debt with no regard for who is legally responsible for the debt. Each person is still responsible regardless of what the judge says.

Both co-borrowers will suffer if one borrower defaults. So it's best to assume responsibility for all debt for which you were a co-borrower. This will ensure your credit is not negatively affected.

If you are unable to assume responsibility for all co-borrowed debt, it's best to close the accounts.

If you have accounts that you cannot close, refinance them to put them in one person's name. Closing accounts in this situation is the lesser of two evils. It will lower your scores, but it's better than repeatedly making late payments (refer to Mistakes 11 and 36).

You should also contact your lenders to determine what other options you have."

As I said, a divorce decree doesn't change the fact that you are responsible for any credit held jointly.

When you open joint accounts you and your partner sign a legally binding agreement holding both of you responsible for the account. The divorce decree is another binding agreement between two people who consent to divorce. It does not change previous agreements between you and other creditors. It doesn't matter to the creditor who actually made the charges (if it's a credit card). It doesn't matter who agreed to pay in the divorce decree. And it certainly doesn't matter to the creditor that you're getting a divorce.

The creditor will try to collect from both borrowers. A word to the wise, don't sign a divorce petition until everything with your jointly held credit is worked out. Promises to fulfill at a later time or by a certain date can be overlooked and expensive to enforce.

What I mean by "worked out" is that all credit held jointly is closed, refinanced into individual names, or paid off to eliminate the debt. "Worked out" does not mean that your ex-spouse has signed a promissory note or some other legal document promising to pay off debt. An irresponsible or vengeful ex-spouse can wreak havoc on your credit rating for years after a divorce. It's legal harassment in its truest form.

Bottom line: the best advice I can give you is…

…do not sign a divorce decree until all credit matters are resolved. Signing the divorce decree should be your trump card and a very good reason to make things happen your way. What I've gleaned from divorced couples I've talked with is that they believe signing papers at the lawyer's office resolves everything. It doesn't. You need to truly resolve matters, which, as I wrote above, means get your name removed from everything jointly held before you sign the divorce papers. That could mean refinancing, creating individual accounts, paying off debt, closing accounts, or whatever it takes.

The last thing you need are late payments appearing on your credit reports after your bankruptcy is discharged. A series of recent late payments can cripple your chances of getting low interest rates after bankruptcy and keep the dark cloud of bankruptcy hanging over your head well after it should.

If you plan ahead and pay close attention to credit accounts held jointly, you can ensure that your credit reports and FICO credit scores won't get damaged any worse. This is something that your divorce attorney will never tell you about. It's not their area of expertise. They simply don't know what kind of impact a divorce will have on your credit reports and credit scores. And frankly, they don't usually care.

When you're married, it's often easier to just make all accounts joint accounts. Many of us do it without even thinking. However, if you can both agree to have separate accounts in addition to your joint accounts, it can potentially save months and years of frustration for both of you if you do get divorced--or, for that matter, if there's an unexpected death, disability or layoff.

Another situation where things can get sticky is when your ex-spouse files bankruptcy and you don't. The creditors of jointly held accounts that your spouse filed bankruptcy on will come knocking on your door for payment...and eventually may push you into filing bankruptcy (if you haven't already) regardless if the debts that the spouse filed on were in the divorce decree. Be aware that your spouse's negative narratives may appear on your credit reports and damage your credit. I talk about negative narratives on page 55 of Do You Make These 38 Mistakes With Your Credit?

Here are some credit tips to help you through a divorce:

# Close joint accounts before you separate or divorce to prevent your former spouse from running up charges and leaving you responsible for the balance. Closing accounts is the lesser of the two evils in this situation. Closing accounts before you separate will make it easier since your spouse is more likely to cooperate with you. Some financial institutions will require the primary account holder to close the account. If that's not you, then you're going to need the help of your soon to be ex-spouse.

# Establish separate accounts, such as credit cards, gas cards and retail cards. This ensures that both parties are individually responsible for their own accounts, which is valuable in a divorce. The crown jewel out of this is you won't have to worry about re-establishing credit on your own...because you will already have it.

# Arrange new individual lines of credit with the same lenders to replace each joint account and transfer agreed upon balances to those new accounts. You want to avoid paying any new charges your ex-spouse makes.

# Some creditors will require you to pay off the account before they put it in an individual name. If you cannot pay off the balance, at least try to close the account to prevent any new charges .

# It may be wise to have an attorney involved if creditors refuse to cooperate with you. The first thing your attorney will need is a copy of the agreement you signed with the creditor. There are several legal service plans that are cost-effective for this sort of thing.

# Try settling the account with the creditor directly by paying a smaller amount than what is owed. The threat of bankruptcy could help your plea. Just be sure you get promises in writing from the creditor. Also make sure they will not report or try to collect on the deficiency balance.

# Pay the jointly held bills yourself--then go after your spouse for the money owed.

Of course, you should also find a good and trustworthy lawyer (good luck!) to help you. Obviously, I'm not a lawyer. And none of what I just wrote should be misconstrued as legal advice. My focus here your credit rating.

From The American Chronicle.

Pre-Divorce Bankruptcy Burdens Spouse Who Got The House

Q. A year before my divorce, my ex-spouse almost defaulted on several debts. We went into personal bankruptcy to save the house we owned. I got the house in the divorce, and have been paying the mortgage ever since. However, due to the bankruptcy on record, I couldn't get a new loan to transfer it to my name.

How can I ensure that my adult children will get this property if I die, or that my ex doesn't get the deed when I pay it off? Is my divorce decree enough? Is there a statute of limitations on the decree?

A. Is your ex-spouse still on the title to the property? If so, then he should deliver to you a quit claim deed, relinquishing all ownership right to the property to you.

However, don't be surprised if he refuses to do this until the time at which you're able to refinance. He may balk at the idea of giving up ownership while he's still on the mortgage and has a financial interest in the property.

Once you are able to refinance (and you may be able to do it sooner than you think), you can have him execute the quit claim deed at the closing on your mortgage. These things can happen simultaneously.

If your ex has already transferred title to you, as required by your divorce decree, you need not worry about his gaining access to the equity in the property.

A real estate lawyer can guide your further.

From Hartford Courant.