Hi,
My ex is starting the process of filing for bankruptcy. He is very irresponsible and chose not to pay his credit cards even though he had the means to do so. He is now "unemployed" althouh he is working for cash.
My question is about our house. We still own a house and have a joint mortgage together. What happens if he files for bankruptcy? Am I soley responsible for the mortgage?
In our separation agreement he is required to pay half of the montly mortgage payment to me so even if he is no longer responsible for the debt to the bank, he is still required to pay me the monthly payment, correct? I am under the impression (I could be wrong) that even if he is discharged from the mortgage, bankruptcy does not discharge you from your responsiblities according to the divorce agreement?
Thank you for any help!
Bankruptcy after divorce in MA
As discussed below, this is a complicated set of issues, and this answer is likely incomplete because of my lack of knowledge re the specifics of your situation. In other words, talk to an attorney.
If your husband's obligations under the mortgage are discharged, you are still responsible for the debt.
As you know, support obligations are not dischargeable in bankruptcy. However, if you are owed back support, and your ex files bankruptcy, you should look into filing a proof of claim with the court.
As for the property settlement, generally, with a Chapter 7 bankruptcy, property settlements are presumed to be non-dischargeable, but your ex can overcome the presumption in some cases. Under a chapter 13 bankruptcy, it may be easier for him to discharge the debt. Regarding Chapter 7, here's the text of 11 U.S.C. §523(a)(15):
(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt-- . . .
(15) not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, a determination made in accordance with State or territorial law by a governmental unit unless--
(A) the debtor does not have the ability to pay such debt from income or property of the debtor not reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor and, if the debtor is engaged in a business, for the payment of expenditures necessary for the continuation, preservation, and operation of such business; or
(B) discharging such debt would result in a benefit to the debtor that outweighs the detrimental consequences to a spouse, former spouse, or child of the debtor.
Also, the answer to this question may depend on the way your separation agreement is written. For example, if the monthly payments are described as support or alimony, a bankruptcy court may be less likely to allow a discharge. I would talk to the divorce attorney who handled your divorce and get her opinion. She may also have some advice about how you should deal with the bankruptcy. She may also recommend that you contact a bankruptcy attorney to help you file a complaint in bankruptcy court to get the debt excepted from any discharge. Good luck.