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Separation Agreement / Filing for Bankruptcy

Discussion in 'Divorce, Separation, Annulment' started by MChin, Sep 3, 2019.

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  1. MChin

    MChin Law Topic Starter New Member

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    Jurisdiction:
    Virginia
    My daughter has been separated from her husband for a year and a half. The separation is contentious to say the least.....he has really been giving her a problem at every turn; refusing to sign any version of the separation agreement thus preventing my daughter the ability to formally file for divorce. He filled bankruptcy about 60 days ago due to a failed business venture he entered into with his brother. Now he says his lawyer advises him not to sign the separation agreement until the bankruptcy is settled. This makes no sense to us and my daughter's lawyer is not being of any help. Is this true? Why can't they sign the current separation agreement, then amend it based on the outcome of the bankruptcy? Sounds like a delay tactic to me, if in fact, my soon to be ex-son in law was advised as such.

    Thanks in advance for any advice.
     
  2. adjusterjack

    adjusterjack Super Moderator

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    There is no place in the US where a person cannot file for divorce without a signed separation agreement. Your daughter has been misinformed.

    She can file for divorce right now. If her attorney is of no help, she can get an another attorney and fire this one.

    Tell your daughter not to take legal advice from the enemy's attorney.

    PS: Bankruptcy does not discharge any obligations that he has to her.
     
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  3. MChin

    MChin Law Topic Starter New Member

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    Thank you for the response. Does this also hold true if the divorce is intended to be a non-contested divorce? She was hoping to make it as easy and painless as possible but doesn't seem to be going down that path.
     
  4. zddoodah

    zddoodah Well-Known Member

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    Where did she get the idea that she has no ability to file for divorce without a signed separation agreement? If a married couple have been living separate and apart, without any cohabitation and with the intent that the separation remains permanent, for more than one year (as appears to be the case for your daughter and her husband), they can be granted a divorce. If they have entered into a property settlement agreement that resolves all property, support, and other issues (and if other conditions exist), then the time period required before filing for divorce is reduced from one year to six months. This can be easily googled, but this Virginia attorney's web site explains it very well.

    Also, there's no such thing as "formally filed." There's only filed and not filed.

    Is what true? You told us that his attorney gave him that advice (something I assume your daughter told you that he told her), and we obviously have no way of confirming or refuting that. He obviously could sign the agreement but equally as obviously isn't going to do so.

    As for her attorney not being of any help, that seems pretty obvious -- especially if he's the one who told her she needs a signed separation agreement to file for divorce. Perhaps she ought to consider a new attorney.
     
  5. zddoodah

    zddoodah Well-Known Member

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    Intended by whom? A divorce is "non-contested" if the parties end up agreeing about everything and don't force the court to decide any issues. Regardless, it has nothing to do with a person's ability to file.
     
  6. adjusterjack

    adjusterjack Super Moderator

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    Yeah, I got that impression. Time for her to file her petition. If he won't agree to a debt/asset division the court will make the decision based on what the parties present to the court.

    As I said earlier he cannot discharge the obligations imposed upon him by a divorce decree. While he can discharge his debts, if the decree orders that he indemnity her for any of his debts that she is compelled to pay, he cannot generally discharge the obligation to her.

    See 11 US Code 523 (a) (5):

    11 U.S. Code § 523 - Exceptions to discharge

    And 11 US Code 101(14A) for the definition of "domestic support obligation."

    11 U.S. Code § 101 - Definitions
     

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