Filing for divorce while in a bankruptcy is something that can be done. The proper procedures must be followed, though. The first thing that needs to be done is to have a "Motion to Lift the Automatic Stay to Permit Divorce" filed with the court. An order on this motion removes the Automatic Stay only to the extent that allows the debtor to proceed with the divorce. This must be done because the automatic stay prevents any court action while in a bankruptcy.
Since filing your Chapter 13 bankruptcy, a stay has been put into place and now it must be lifted in order for a divorce to proceed. As a Debtor, you must contact your bankruptcy attorney to find out what fees they charge for filing this motion. Your bankruptcy attorney may have different fees if it is uncontested or contested, so make sure the other Debtor in the case is willing to move forward, it will save you both a lot of money, time and grief. Once the stay has been lifted, you can now move forward in filing for divorce. Please contact your bankruptcy attorney as soon as you know you have to go this route, to ensure enough time is allowed to permit the motion to lift the automatic stay to permit the divorce.
Strategies when facing a Divorce
Where the bankruptcy comes in is both people are responsible for the debts no matter what the judge says. Example of this the car is in both names the husband is going to keep it but for whatever reason he falls behind and the car is reposed. The creditor is going to go after both people no matter what the judge has said. The husband could have used the chapter 13 bankruptcy to put the car, all the credit cards and surrender the wife car in the plan. In doing this the payment could be less then what the car alone was. The wife could do the chapter 7 bankruptcy surrendering his car and the credit cards. Now both people will not be responsible for what the other person does in the future, allowing them to rebuild their credit. If a divorce is in your future a bankruptcy attorney should be talked to see how the bankruptcy laws could help.
Stopping Bankruptcy Due to Divorce
If you Divorce while in active Chapter 13 case then you may decide not to remain in current bankruptcy case with spouse. You can sever your final financial ties after divorce by filing a Motion to Sever Chapter 13 bankruptcy case. It is best if both parties are in agreement for one debtor remain in current case and the ex-spouse can refile a new case. This would be an unopposed motion and your attorney will have you sign an affidavit to reflect the agreement to sever. However, if you are a debtor in active bankruptcy and your ex-spouse refuses to contribute to the bankruptcy payment then you can still have the case severed. An intent to file motion to sever letter will be sent to opposing debtor via certified. If they do not contact our office to object then our office can proceed with filing and serving opposing debtor notice of hearing and objection deadline. If the opposing debtor does not contact our office to object then the Motion to Sever will be granted.
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