Rules for Severing a Chapter 13
When a couple files a bankruptcy together, the attorney they hire represents both parties. He cannot do something on behalf of one Debtor that might hurt the other Debtor. Severing a case is a prime example of something that must be agreed on by both Debtors. The attorney needs to get a signed (preferably notarized) statement from both Debtors that they want their Chapter 13 case severed. If the attorney does not have the agreement of both parties, the Motion to Sever the Chapter 13 case cannot be filed.
The reason for the attorney not being able to file the case, even if one of the Debtors is not making part of the Trustee payment or if they have disappeared and are nowhere to be found, is the attorney represents both Debtors. By filing a motion to sever, he is basically choosing one Debtor over the other. As I explained to one of my clients who was in this situation, we would be kicking one of the Debtors out of bankruptcy without permission.
By choosing one Debtor over the other there becomes a conflict of interest for the attorney. The best thing for the Debtor who wants to sever the case would be to let the case get dismissed, try and get the other Debtor to agree, or hire another attorney to appear as special counsel and file the motion on her behalf. Generally, none of the options are appealing to the Debtor who wants the case severed, but they are the only options available.
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