Laguna Niguel, CA asked in Bankruptcy for California

Q: Can my filing Chapter 7 by myself have creditors come after my husband after its done?

I live in California. I rent a room somewhere else while my husband stays in the house we rented. Do to his behavior I decided to leave. We are not legally separated, but don’t currently live in the same county together. My income by myself would get me chapter 7 to remove crushing credit card debt. He has never been a co-signer on any of my cards. We never had a joint bank account. We do not own any homes & have no children. So 2 questions.

1) how long do I have to be living separate from him to get chapter 7 approved?

2) If we do get back together later down the road, can they reopen it & go after me & him? Or me?

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4 Lawyer Answers

Peter Maurice Lively

Answered
  • Bankruptcy Lawyer
  • Culver City, CA
  • Licensed in California

A: Before getting to your two questions, you should be aware that despite not being a cosigner, a cardholder on your account can be liable for that cardholder's purchases and CA community property law defines certain types of debt as belonging to both spouses when they are incurred during marriage. Further, despite not having joint bank accounts CA community property law provides that income earned during marriage, and the assets acquired with community property earnings, belongs to both spouses. Therefore, while you might be eligible for a chapter 7 discharge based upon your income level, there might be community property assets at risk if you file a bankruptcy case - the community property becomes an asset of either spouse is bankruptcy estate - and your husband might be liable on some portion of the debts you mentioned.

Regarding your questions: I'm not aware of any specific period of time required to be living separate and apart to exclude the nonfiling spouse's income from the analysis of the filing spouse's eligibility for chapter 7 discharge. As a practical matter, separate households often exhaust the combined earning of both spouses. You should be able to produce evidence of living separate and apart such as separate rental agreements and separate utility bills.

A chapter 7 discharge can be revoked within one year after being entered in the court's docket pursuant to Bankruptcy Code Section 727(d) which includes fraud of the debtor.

You should consult with an experienced bankruptcy attorney before proceeding any further.

Theodore Allan Greene agrees with this answer

Timothy Denison

Answered
  • Bankruptcy Lawyer
  • Louisville, KY

A: Unless your husband is also a debtor on the things you bankrupt, he isn’t obligated to pay them and never will be. There is no statutory time frame from which you must be separated.

Harlene Miller

Answered
  • Bankruptcy Lawyer
  • Irvine, CA
  • Licensed in California

A: Attorney Lively has been generous with information for you. However, I urge you to actually meet and consult with a bankruptcy attorney in order to fully understand all related issues and options for what you are contemplating.

Aaron Michael Lloyd

Answered
  • Bankruptcy Lawyer
  • Los Angeles, CA
  • Licensed in California

A: Let me answer below:

1. There is no specific time period that I am aware of for you to be living separate and apart from your husband to claim on the bankruptcy papers that you are actually living separate.

2. The trustee could re-open the case if he or she suspects there is any kind of debtor fraud. Whether it is not disclosing community property assets or not disclosing household income or not being truthful about living separate.

One of the most important things for a debtor in bankruptcy is to be honest and forthright with all the information on the bankruptcy papers. It is in your best interest to hire an experienced bankruptcy attorney to help you get through the process. Many bankruptcy lawyers offer free consultations, take us up on it.

I hope this helps and best of luck.

Aaron

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