Can I start the proceedings for a divorce even though we are in the middle of filing a bankruptcy jointly? 22 Answers as of January 24, 2011

I badly want to get my divorce done but I am in the middle of filing a joint bankruptcy with my ex. do I need to wait until the bankruptcy is finished before getting the divorce?

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Law Office of Curry & Westgate
Law Office of Curry & Westgate | Patrick Curry
Yes you can file for divorce during your bankruptcy.
Answer Applies to: California
Replied: 1/24/2011
Law Office of Roianne H. Conner
Law Office of Roianne H. Conner | Roianne Houlton Conner
I would be best to complete or almost complete the bankruptcy before filing for the divorce. If the bankruptcy is not complete then the creditors may be able to come after you for any joint accounts.
Answer Applies to: Alabama
Replied: 1/20/2011
Colucci and Associates
Colucci and Associates | Paul Colucci
No you do not have to wait until the bankruptcy is concluded but it is certainly an issue that must be addressed. Also, it may be advantageous to complete the divorce before the bankruptcy if that is still possible. We can discuss this matter further. Call me.
Answer Applies to: Michigan
Replied: 1/19/2011
Law Office of Joseph A. Katz
Law Office of Joseph A. Katz | Joseph A. Katz
Of course you can. No need or reason to wait.
Answer Applies to: California
Replied: 1/19/2011
Goodman, Dicus, and Teinert, LLP
Goodman, Dicus, and Teinert, LLP | Paul M. Teinert
Divorces alone are often very complicated, as are bankruptcies in many situations. Trying to do both at once is complicated squared, and you should definitely get legal advice from an attorney knowledgeable about both areas of law before moving forward in either legal arena. In fact, each spouse should have independent legal advice before proceeding. Though that may seem impractical, there are many potential dangers if each party does not have separate legal counsel.

If you plan on getting divorced, you should probably not file a joint Chapter 7 case before the divorce except in the most straightforward situations. An experienced attorney will know what issues to investigate to determine if your Chapter 7 case is likely to be very quick (3-4 months is the fastest you could expect under ideal circumstances) or if it would likely take longer and interfere with a divorce filing. If the bankruptcy is likely to be quick with little or no major asset problems to work out, then filing a bankruptcy together might be advantageous prior to the divorce.

In contrast, if there are assets likely to be tied up in the bankruptcy, then the divorce court will not have jurisdiction to address these issues. A joint bankruptcy would also be problematic if either of you have any claims or debts against each other, now or anticipated from the divorce. Another major concern is that often times the process of the divorce can be extremely straining on each party's financial resources. If the divorce is likely to be contested (and by extension expensive) then it may be wiser to file the bankruptcy afterward.

As for Chapter 13 bankruptcies, it is virtually never sensible to file a joint Chapter 13 case if you are seriously considering a divorce. The payment plan of a Chapter 13 is usually last 3 to 5 years, and can be a challenge to complete in the best of circumstances. Because the plan is generally based on circumstances at the time the plan is confirmed, filing at a time when you and your spouse are not working well together as an economic and emotional team is almost always foolish. Though you can get divorced in the middle of a Chapter 13 case, it will require severing the cases, filing new plans or converting to Chapter 7, and will greatly increase the cost of the bankruptcy and potentially cause other problems. Don't file a joint Chapter 13 case if the marriage is not likely to survive the length of the plan.
Answer Applies to: California
Replied: 1/19/2011
    William C. Gosnell, Attorney at Law
    William C. Gosnell, Attorney at Law | William C. Gosnell
    Yes, you can still file for divorce.
    Answer Applies to: Tennessee
    Replied: 1/19/2011
    Warner Center Law Offices of Donald F. Conviser
    Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
    The joint bankruptcy should not interfere with your ability to file and serve an action for Dissolution of Marriage.
    Answer Applies to: California
    Replied: 1/18/2011
    Law Office of Michael E. Hendrickson
    Law Office of Michael E. Hendrickson | Michael E. Hendrickson
    No, you do not.
    Answer Applies to: Virginia
    Replied: 1/18/2011
    Law Office of John C. Volz
    Law Office of John C. Volz | John C. Volz
    Yes, you can file for divorce during a bankruptcy matter. If you need additional assistance please contact our office.
    Answer Applies to: California
    Replied: 1/18/2011
    Reeves Law Firm, P.C.
    Reeves Law Firm, P.C. | Roy L. Reeves
    No, you do not need to wait, however, you do have to advise the bankruptcy court that you are going through a divorce and the trustee can make suggestions. It is best to be through with the BR first, but that too depends on the nature of the proceeding. If it is a Chapter 7, wait and get it done since that takes only a few months, however if you are going through a Chapter 11 (payment plan) it is different.
    Answer Applies to: Texas
    Replied: 1/18/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    Generally, there is nothing to prevent filing for divorce now. However, you should talk to the attorney handling the bankruptcy to understand the consequences of filing now or waiting until the bankruptcy is concluded. Depending on the specific debts and property involved, and the current status of the bankruptcy case, it may or may not be a good idea to wait.
    Answer Applies to: Colorado
    Replied: 1/18/2011
    Goldberg Jones
    Goldberg Jones | Zephyr Hill
    Yes you can file immediately and probably should.
    Answer Applies to: California
    Replied: 1/18/2011
    Law Office of Stephen Pearcy
    Law Office of Stephen Pearcy | Stephen Pearcy
    Yes you can.
    Answer Applies to: California
    Replied: 1/18/2011
    Harris Law Firm, pc
    Harris Law Firm, pc | Robert Harris
    You can start your divorce at any time. However, you should talk to your bankruptcy attorney before you do so, because he or she may need to withdraw from representation of BOTH of you and you'd need to each get another bankruptcy lawyer. A lawyer can't represent two people who are adverse to each other, and when you file a divorce you and your spouse will be adverse parties.
    Answer Applies to: Oregon
    Replied: 1/18/2011
    Diana K. Zilko, Attorney at Law
    Diana K. Zilko, Attorney at Law | Diana K. Zilko
    No...you should not have to wait. If you have any further questions, please let me know.
    Answer Applies to: California
    Replied: 1/18/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    There is a bankruptcy stay that enters and stops all collection actions against a debtor or against property that is contained in the bankruptcy estate. What happens in the bankruptcy will affect the division of assets and liabilities in the divorce - the assets in the bankruptcy estate must be analyzed to see whether and to what extent they can be made available to creditors of the bankrupt debtor; and until the debts are finally discharged in bankruptcy you will not know whether they must be divided in the divorce. That is why the court will not ordinarily finalize a divorce while a bankruptcy is pending. That being said, it should not take too long for the discharge in a simple bankruptcy. If you wish to discuss further please feel free to contact the office. Good luck.
    Answer Applies to: Connecticut
    Replied: 1/18/2011
    DiManna Law Office, LLC.
    DiManna Law Office, LLC. | Dawn DiManna
    A state court cannot distribute property in a divorce while a bankruptcy is going on, so you will need to wait.
    Answer Applies to: New Hampshire
    Replied: 1/18/2011
    Cramer Latham LLC
    Cramer Latham LLC | Victoria Cramer
    Legally you can file. Practically, you may want to think about it. Call for details.
    Answer Applies to: Utah
    Replied: 1/18/2011
    Kaczmarek Law Firm, LLC
    Kaczmarek Law Firm, LLC | Bridgette D. Kaczmarek
    You do need to wait to have your divorce decree entered and finalized if you filed for bankruptcy. The Court cannot enter a decree until it is certain the marital property and debts have been addressed through bankruptcy. But you can file for divorce while waiting on your discharge. You just can't have it finalized.
    Answer Applies to: Colorado
    Replied: 1/18/2011
    Law Office of Martin Blank
    Law Office of Martin Blank | Martin E. Blank
    On the divorce level, there shouldn't be a problem. But it is another factor that your divorce attorney must consider when doing the property settlement. How that would be dealt with in the bankruptcy court must be discussed with a bankruptcy lawyer. My gut feeling is that it will not matter, but an attorney who does bankruptcy can better answer that question.
    Answer Applies to: Michigan
    Replied: 1/18/2011
    Michael Apicella
    Michael Apicella | Apicella Law and Mediation
    No. You can start the divorce process now. Call a local family law lawyer and he/she can explain how a bankruptcy affects your divorce.
    Answer Applies to: California
    Replied: 1/18/2011
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