Mortgage & Chapter 7

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needanswers1234

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My wife and I are in the middle of a divorce. I was trying to work with her by letting her keep the house which presently has my name on the mortgage. We live in NM. I thought there would be a way to transfer the mortgage into her name only with a quitclaim, but I'm seeing this is just not the case. She and my adopted 17yr old son currently reside there. I'm in dire straights, jobless, homeless, without an attorney. She receives close to $2000 a month fixed income and is quite capable of getting an apartment. I don't trust her at all anymore and am considering filing a chapter 7 on everything, including the house. Can I do this?
 
Yes, you certainly may file a BK.
You do not have to include her debts.
That will only forestall any foreclosure efforts by the lender for a very limited time.

What are you trying to prevent or achieve with the BK?

It won't save the home.

It only delays the inevitable.

If you can't pay, you can't pay.

Do you want the lender to take the home and relieve you from the debt?




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thanx for the reply

I was trying to work with my wife by allowing her to keep the house but things have gone from bad to worse. She's constantly trying to "get me". I cannot trust her. The mortgage is in my name alone. I want to severe ALL ties with her. I adopted her son who is now 17yrs. But he and I both agreed to no longer continue his and mine relationship because she just uses him to get to me. We have other shared debt as well as the house. Mostly debt caused by her. We're currently trying to work out the marriage settlement but it's not going well. I'm down to hardly any possessions at all. Everything I have can be loaded in the back of my beat up 70 chevy full size pickup. The last straw was when she asked for a speaker out of my guitar amp that she bought for me. It cost $160 new. She says it could be sold to help pay towards the debts we have. Can I file the Chapter 7 by myself against all the debt, hers and mine, without her consent?
 
No, you can only file a BK for your debt, if she doesn't consent.

But, I think your state, NM, is a community property state.

You might be responsible for debt she acquired alone during the marriage.

I'd speak with a local BK lawyer, before doing anything, pro se.

The initial consult is free.

You'd have been a fool to let her stay in the house, with the debt in your name only.

You didn't really think she would do as promised, did you?

The next shoe to drop, will be when she wants child support for the 17 year old boy you adopted.

Don't you see that coming?

You need a lawyer. Yes, it'll cost you, but not as much as this shebeast plans to steal from you!!! An amp she gave you as a gift? WOW, some people.


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You are not getting the complete story. NM is a community property state. With the exception of real property, which must be in both names (otherwise is is deemed sole & seperate), all debt run up during the marriage is community and all assets purchased during the marriage belong to the community. Both husband and wife are equally responsible and equal owners.

If you file a bk without your wife, you need to list ALL debt run up during the marriage REGARDLESS of who ran it up. In fact, your bk will protect her for until the divorce is final even if she did not file. Assuming you do not have a "legal seperation agreement", once the community is severed (divorce decree entered) your "community" discharge will no longer protect her. Further, if you file bk BEFORE the divorce is finalized any and all community property becomes property of the bk estate.

Lastly, any obligation that arises out of a divorce decree, whether it is in the nature of support or akin to a property division, is simply not dischargeable in a Chapter 7. Support is never Dischargeable and is given a "priority" status if delinquent. Under 523(a)(15), if you promised to pay a debt and don't and then the creditor goes after your ex she will be able to go after you for recoupment.
 
Minor correction.

Support MAY be discharged if it becomes a civil judgment.
 
But. . . I beg to differ.

The bk judge has the authority to make an independant determination that the debt is "in the nature of support" and is therefore priority/non-dischargeable. See 11 USC 523(a)(5) and 11 USC 101(14A).

While I have never heard of a DSO losing its designation by being reduced to a judgment (something other than a judgment for support) - certainly not in my jurisdiction - such, it would seem, does not matter based upon the obligation being "in the nature of support".
 
I guess I do need to make a correction. You did qualify your respose by saying "may". I guess I was too tired to pick up on that item. It appears my "in the nature of support" rant was not necessary. I apologize.
 
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