Motion to Lift Stay for Purpose of Divorce
When a person files a bankruptcy, it stops all other legal actions. This is the main reason why most Debtors file bankruptcy, to stop a foreclosure, to stop a repossession, to stop a wage garnishment, to stop creditors from calling; the list goes on and on. However, it is not always beneficial to have a stay in place that stops everything else from occurring.
I have Debtors who decide they want to file for divorce while they are in bankruptcy, but find it is not as easy as they thought. In order to file for divorce, a motion to lift the stay for the purpose of divorce must be filed with the court. This is usually an additional expense that is charged either by the Bankruptcy attorney or the Family Law attorney. It also means that the parties must wait to get a divorce until the Bankruptcy Judge has a hearing and signs the order. It is usually a simple process, but it must be done in order for the family court to have any jurisdiction to hear the divorce case.
One of the problems arises when both spouses have filed for bankruptcy. The Bankruptcy attorney represents both parties and can only file the motion to lift the stay for the purpose of divorce if both parties are in agreement and sign an affidavit. Sometimes this can be a problem. If the parties will not agree, then one of the Debtors must have their family law attorney file the motion.
There can also be problems if only one spouse is in bankruptcy and there is community property that is non-exempt. The property is then property of the bankruptcy estate and might not be able to be divided up in a divorce until after the bankruptcy has been either discharged or dismissed.
Please fill out our free evaluation form to determine if bankruptcy is right for you.
