Should I get Divorced Before Filing Bankruptcy?

Many people are contemplating divorce and bankruptcy at the same time. In fact, in some cases, ones financial position may have created stresses in their life that have contributed to the decision to file for a dissolution of marriage. But rarely have I seen financial problems, in and of themselves, cause on to get divorced. In fact, I have found just the opposite; one in financial difficulties often becomes more dependent on the other spouse to make it through hard times. 

While the question of whether to file bankruptcy before of after getting divorced may seem like a simply one on the surface, it is actually more complicated than simply giving a simple yes or no type answer. While the answer to this question is not as complicated as the bankruptcy code itself, the answer is directly tied to the bankruptcy code. Numerous things have to be considered, including the following:

• Is there a custody issue?
• Are both spouses working?
• Is the household income more than the median household income for debtors of your household size in your state?
• Is a tax refund expected at the end of the year?
• Do you own your house (as opposed to renting)?
• Are wages being, or going to be, garnished?
• Is the divorce contested?
• Are both spouses contemplating bankruptcy?
• Which chapter of bankruptcy is most appropriate depending on when it is filed?
• Are you behind on payments on any secured debts you might want to keep?
• In the distribution of assets from the divorce, are there any funds to be transferred from one account to another pursuant to the judge's order?

While this is far from an exhaustive list, this should show you, at least on the surface, some of the things an attorney should be thinking about when such a question is posed. In fact, the question is actually complicated enough, depending you your situation, a bankruptcy attorney may need to get some information about your divorce from you divorce attorney before answering this question.

To get a proper answer to this question, I suggest you call to schedule an appointment for a consultation with a competent bankruptcy attorney in your area?

Discount Jaguar Tickets

Below is a public service announcement not bankruptcy related.  If you like it, please let me know.

"Where Can I Find Discount Jaguar Tickets?"

Are you ready for some Jaguars football?

As a bankruptcy attorney, and consumer advocate, I am always interested in helping others financially.  That means, in part, saving money. What does this have to do with bankruptcy or foreclosure defense?  NOTHING.  This is just good news.

I am a member of the Rotary Club of South Jacksonville, and as a fund raiser for Rotary District 6970, I am able to offer my clients and other friends discounted Jaguar tickets.

CLICK HERE TO PURCHASE TICKETS THROUGH THE ROTARY PROGRAM

<https://oss.ticketmaster.com/aps/jaguars/EN/link/promotion/home/98d379e7ea328ff96a6e28e64c489fa6cb97d183>

Although these tickets were made available to Rotarians, I am able to offer them to my clients and friends.  This is a fund raising effort continued from last year, with minor changes.  Now the tickets can be purchased online.

- A portion of every ticket purchased makes a donation to the Rotary Club.

- If offered a choice of Rotary Clubs when making your purchase, please select the Rotary Club of South Jacksonville.  This allows some of the proceeds to be returned to this particular Rotary Club (of which I am a member) for use in local community projects.

- Exclusive discounted ticket prices saving $15 off game day prices.

- No minimum number of tickets required for purchase.

- Available for all remaining 8 Home games.

- FREE Shipping or direct E-mailing on all orders.

 PREDICTION CENTER

- If you have a Jaguar season (or game) PREDICTION, please let me know by commenting below.

I was hesitant about putting this on my Blog because it is not Bankruptcy or Foreclosure Defense related.  If I should post more pages like this one, let me know and/or press the "Google +" button at the top of the page.

Thanks :)

Can I Keep My Tax Refund If I File Bankruptcy?

In the Middle District of Florida, the courts have generally held tax refunds should be apportioned according to a filing spouses contribution to the taxable income according to IRS guidelines.  Obviously, this is only applicable when only one spouse files.  

Well, I have some good news.  Recently the Eleventh Circuit issued a ruling regarding this.  If you are married, filing without your spouse, make sure your attorney knows of the following case.  You may be able to keep your tax refund.

---

Stevenson v. Uttermohlen (In re Uttermohlen), Case No. 13-10289 (11th Cir. Aug. 9, 2013) (unpublished) (per curiam).

Ruling: 

The United States Court of Appeals for the Eleventh Circuit affirmed the judgment of the United States District Court for the Middle District of Florida, and ruled that the debtor's right to a tax refund is exempt as tenancy-by-the-entireties property under 11 U.S.C. § 522(b)(3)(B) and Florida law, even where the refunded tax contributions relate solely to the debtor's income, and the non-filing spouse does not work.

Procedural context: 

The United States Bankruptcy Court for the Middle District of Florida (Catherine Peek McEwen, Bankruptcy Judge) sustained an exemption of tax refunds over the Chapter 7 trustee's objection. On appeal, the United States District Court for the Middle District of Florida (Virginia M. Hernandez Covington, District Judge) affirmed the Bankruptcy Court's ruling. The Chapter 7 trustee then appealed to the United States Court of Appeals for the Eleventh Circuit.

Facts: 

Debtor sought to exempt a $10,668.00 tax refund as tenancy-by-the-entireties property. The Chapter 7 trustee objected, arguing that (i) the refunded tax contributions related solely to debtor's income, business income, and losses, (ii) the non-filing spouse did not work outside the home, and (iii) the tax refund does not qualify as tenancy-by-the-entireties property, but should be apportioned on the basis of each spouse's income. The Bankruptcy Court found that all unities required to to own property as tenants-by-the-entireties existed on the date the debtor filed bankruptcy, and overruled the Chapter 7 trustee's objection.

Judge(s): 

 Barkett, Marcus, Hill

A Lawsuit Has Been Filed Against Me, What Do I Do?

So, you just received some papers from a police officer, or a process server. The person asked you your name, handed you some papers, and said have a nice day. Then you told the officer you did not want them, or refused to accept them. The officer through the papers on the ground in front of you, then they “exit, stage right” as if imitating Snagglepuss in a Hanna-Barbera cartoon.

Well, obviously this is not as comical as a cartoon, as you have just been served with a law suit. Chances are, the first or second page will have the word SUMMONS written on it, and instruct you that you have a certain number of days to respond. What in the world are you suppose to do now?



Well, first of all, upon entering this situation, don't panic. Nothing bad has actually happened yet. The papers are usually simply contain allegations against you, which may be true or not. The first thing I would HIGHLY suggest you do is to seek the advise of an attorney.


Please note, being this blog is bankruptcy related, I will limit my comments to lawsuits involving money. Other lawsuits could be filed, which may also need the assistance of legal counsel.


There are usually a couple a things you can do. First, do nothing. That's right, your eyes are not playing tricks on you as you are looking at the complaint through the dust of the exiting process server. What happens if you do nothing? Well, usually you may receive a judgment against you. Sometimes, depending on the situation, this may be the best course of action, as it avoids discovery that may lead to other causes of action against you. Where an initial cause of action may lead to a judgment that is able to be discharged in bankruptcy (not that I am necessarily recommending bankruptcy, as the filing of a bankruptcy should be a last case alternative), after discovery the language in the judgment from the court may include language that would make it non-dischargeable.
Second course of action is, you guessed it, do something. The something would be to respond to the complaint to let the court know why the complaint is wrong, or why you do not owe the money that is alleged. This means you would raise relevant defenses, affirmative defenses, and counter-claims.


So, how does bankruptcy fit into all this. Again, as a last case alternative, bankruptcy could be contemplated as a means of stopping the law suit, and discharging the debt. Bankruptcy may also be a means of allowing you to pay the debt over a period of time. If you think you might be interested in this course of action, you should seek the advise of a competent bankruptcy attorney in your jurisdiction.

Mortgage Modification Redefault Under TARP and HAMP

The Special Inspector General for the Troubled Asset Relief Program (TARP) on July 24, 2013 published figures concerning the program. According to the Special Inspector General, HAMP helped about 865,000 homeowners avoid foreclosure through permanent mortgage modifications, however, more than 306,000 of these modifications have redefaulted into private sector modifications or foreclosure. Of the homeowners still in the HAMP modification, more than 88,000 have missed one or two monthly payments.

Twenty-two percent of homeowners who have defaulted on their HAMP permanent mortgage modifications have moved into the foreclosure process. Redefault rates of the oldest 2009 HAMP permanent mortgage modifications have continued to increase as they age at a rate of 46%, while the 2010 HAMP permanent mortgage modifications are redefaulted at a rate of 38%.

The redefaults cost taxpayers money. As of April 30, 2013, $815 million has been spent on more than 163,000 HAMP permanent modifications that redefaulted.

In spite of this bad news, the HAMP program has been extended to December 31, 2015. Hopefully this will allow the program to become more efficient and figure out how to reduce the number of redefaults by looking at early warning signs which would allow the program to further help homeowners.

WHO IS MOST LIKELY TO DEFAULT

Data shows a pattern of homeowners that are most likely to default:

1. Received the least reduction in their monthly mortgage payment and overall debt;
2. Are still underwater; and
3. have subprime credit scores and high overall debt.

The Treasury obligated $19.1 billion for the HAMP First-Lien Modification Program, however, as of April 30, 2013, the Treasury has only expended $4.4 billion, or 23%, on HAMP permanent modifications. On April 30, 2013 865,100 homeowners were in an active HAMP permanent mortgage modification. Of these, 88,813 have missed one or two payments.

The Southeastern United States (AL, FL, GA, MS, NC, PR, SC, TN and VI) have an average default rate of 28%, with Florida being slightly lower at 27%. In the area where I practice, Jacksonville, Florida, as of April 30, 2013, there were 7,784 permanent modifications, 5,199 active modifications, and 2,509 redefaulted modifications reflecting a redefault rate of 32%.

Rental Property In Bankruptcy: Can I Get Rid Of It?

Most people that file bankruptcy are trying to keep everything they have, while relieving themselves of the burden of being responsible to creditors for their debts. A simpler way of stating that is, how can I keep my stuff and not have to pay my debts?


Sometimes, however, a debtor actually wants to give property back. I know what you are thinking, why would someone want to give there things away? Well, sometimes people acquire things they later do not want. For example, if you purchased a car on a note, and repairs to vehicle cost more than just getting another car, you may want to just buy another car. It sure would be nice to be able to give the car to the note holder and not owe them any more money, and not be responsible for insurance, tags, etc.


A similar example would be under performing rental property. That is, rental property, with a mortgage, that cost more to maintain it (repairs, taxes, and insurance) and pay mortgage payments than what the landlord received in rent. Again, I know what you are thinking; this could not be. But, wouldn't it be nice to be able to give the property to the mortgage holder. And yes, this actually does happen.


Well, through bankruptcy, you can absolve yourself of being personally liable for the debt. I have never heard of the giving back of a car to be a problem in bankruptcy, however, real property could be a different story.


The owner of real property could be responsible for ongoing debts associated with the ownership of the property after the filing of the bankruptcy. Sometimes the debtor does not want the property, and the mortgagee also does not want the property. The mortgagee could get stuck with unmarketable property, such as contaminated property, or be subjected to high association fees.


So, can you make a creditor take the property. The simple answer is NO. The giving back of property associated with the filing of a bankruptcy takes planing. Although the giving back of a car is usually simple, when it comes to real property, I highly suggest you seek the advise of competent bankruptcy attorney in your area.

You should keep in mind the bankruptcy law is not necessarily logical. Trying to plan for bankruptcy without consulting an attorney could easily and unintentionally cause you to be put into a situation you do not want to be in. Seeking advise from a bankruptcy attorney early is highly advised.

Will I Loose My Home If I File Bankruptcy?

So, you are trying to relieve yourself of debt so you can move on with the rest of your life. You are also putting off the bankruptcy because you heard from someone you will loose your house you have so diligently been paying for over the years, you should seek the advise of a competent bankruptcy attorney that practices in the area in which you live.

 

I receive calls on a regular basis asking if they are going to loose their home if they file bankruptcy.  In some cases, they are telling me they can not file because they do not want to loose their home.  If you are one of these people, don't feel bad, as I even have other attorneys asking questions related to this topic that seem to somehow be cloaked in a whirlwind of misstatements.

 

The Answer: well, that depends on where you file, and the value of your home. 

That is, unless you file in Florida, where the light shines (I know, cheesy right?).

This blog is directed towards debtors filing if Florida, as that is where I practice.  As a general rule, if you have homestead property in Florida, that is, real property that is exempt from creditors claims pursuant to the Florida Constitution, then you can claim a homestead exemption on Schedule C of your bankruptcy, and keep you home. 

 

So, what happens if you live in a mobile home?  If you live in a mobile home, and do not own the land under it, you may have to wait a couple of years after moving to Florida in order to claim an exemption, as this is a statutory rather than constitutional exemption that needs to be claimed. 

As a side note, if you are planning on moving to another state, you should speak with bankruptcy attorneys in both the state you are moving from, and the state you are moving to, about where you should file bankruptcy. There may be significant advantages in filing in one state over another. This should be done well before moving, in order to arrange for proper planning.

You may wish to review some related blogs, including

http://jacksonville-bankruptcy-grange.blogspot.com/2011/09/when-you-should-consider-finding.html

http://jacksonville-bankruptcy-grange.blogspot.com/2013/02/bankruptcy-attorney-jacksonville-how-to.html