Do I have to file for bankruptcy as well if I am separated from my husband? 13 Answers as of February 05, 2011

I am separated from my husband and our home is going into foreclosure. He wants to file bankruptcy and I do not. Can I do a quick claim deed to get my name off before he files?

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Law Offices of Michael J. Berger
Law Offices of Michael J. Berger | Michael J. Berger
You do not need to file bankruptcy because your husband is filing bankruptcy. You do not need to quitclaim your interest in your home to your husband. Quitclaiming your interest in the property to your husband will not remove your name from any loan.
Answer Applies to: California
Replied: 2/5/2011
Gus Johnson Attorney at Law
Gus Johnson Attorney at Law | Gus Johnson
A quit claim deed will not extinguish your liability for debt secured by the house.
Answer Applies to: South Dakota
Replied: 2/1/2011
Law Office of Larry Webb
Law Office of Larry Webb | Larry Webb
Are you on the mortgage? As long as you are married or a co-debtor, he will have to list you in the appropriate schedules. The local rules vary a great deal on use of exemptions by a married person filing separately. Consult with a local attorney.
Answer Applies to: California
Replied: 1/31/2011
Mankus & Marchan, LTD
Mankus & Marchan, LTD | Tony Mankus
You need not file bankruptcy jointly with your husband. However, you might be liable for any shortfall if your home is sold by the bank after foreclosure - if you signed jointly with your husband on the home loan and mortgage. Consult with a real estate attorney.
Answer Applies to: Illinois
Replied: 1/31/2011
William C. Gosnell, Attorney at Law
William C. Gosnell, Attorney at Law | William C. Gosnell
If your husband files Bankruptcy you need to file also. you can quit claim deed the house but you are probably liable on the mortgage. So the mortgage liability is on you.
Answer Applies to: Tennessee
Replied: 1/29/2011
    Law Offices of J. L. Haddock, PLLC
    Law Offices of J. L. Haddock, PLLC | Jared L. Haddock
    I understand that you and your husband are both on the deed presently, but the answer to your question depends on whether your name is also on the mortgage. In order to simplify what I think you really want to know, I will assume that it is.

    There are two chapters of Bankruptcy that individuals typically may file under. You mentioned that the home is going into foreclosure. Which chapter of Bankruptcy (7 or 13) that is filed may depend on what you and your husband's goals are with regard to the house.

    If you are trying to save the home from foreclosure, then you would likely consider a Chapter 13 (though there may be less cumbersome ways of preventing a foreclosure than Chapter 13 available to you). If your husband is filing a Chapter 13 and wishes to keep the home, then you will likely not need to file for Bankruptcy since his reorganization would include payments to the mortgage company.

    If you are intending to "walk away" from the home and let it go to foreclosure, then Chapter 7 may be a better way than Chapter 13 to discharge the deficiency balance after foreclosure (assuming that you are eligible for a Chapter 7 filing). If your husband files for a Chapter 7 Bankruptcy and discharges his obligation on the mortgage, then the mortgage company could hold you personally liable for the deficiency balance, unless you also file for a Chapter 7 discharge.

    Just to make the answer even more complicated (though that is honestly not my intention), if you are separated and still on speaking terms (no divorce pending), you may want to consider filing jointly for Bankruptcy. It is not at all unusual for a divorce to end up in two bankruptcies. Filing jointly for a single case before a divorce is cheaper and generally makes the divorce much easier when there is virtually no division of debts necessary.

    I know this is probably a more complicated answer than you were looking for, but then it is my job to consider all of the legal implications of the question you asked. I would be happy to offer you a free initial consultation in which we can sit down and discuss all of the options available to you and whether or not it is in your best interest to file for Bankruptcy at all.

    I hope this information has been helpful.

    Thank You,

    Jared L. Haddock
    Answer Applies to: Michigan
    Replied: 1/28/2011
    Ursula G. Barrios Law
    Ursula G. Barrios Law | Guillermo Machado
    I would not transfer your interest in the house prior to a BK. This is considered fraud. Either way, the transferring of title does not excuse your liability on debt. If antideficiency laws apply to your home loans, you should not have to pay them after foreclosure. If the loans are recourse, then the banks can attempt to collect.
    Answer Applies to: California
    Replied: 1/27/2011
    Law Office of L. Paul Zahn
    Law Office of L. Paul Zahn | Paul Zahn
    You are not obligated to file bankruptcy, just because your husband does, however if you are on the loans that are discharged through bankruptcy, the creditors can still come after you for their money. Simply removing yourself from the title will not protect you from their collections efforts.
    Answer Applies to: California
    Replied: 1/27/2011
    The Law Office of Mark J. Markus
    The Law Office of Mark J. Markus | Mark Markus
    What does quitclaiming your interest in the house to him accomplish? You only need to file bankruptcy if it benefits you to do so. Without knowing what your assets and debts are, there's no way to answer that question. If you are married and live in a community property state, then if your husband files a bankruptcy and receives a discharge, then you will also be discharged for any community debt obligations you have. If you have separate property debts (e.g. those incurred post-separation) then they would not be covered by his bankruptcy.
    Answer Applies to: California
    Replied: 1/27/2011
    Janet A. Lawson Bankruptcy Attorney
    Janet A. Lawson Bankruptcy Attorney | Janet Lawson
    The quit claim deed will not help if your name is on the loan. The first mortgage can not come after you in California. If there is a second mortgage, then you have cause to be concerned. They will try to collect the debt from you if he files for bankruptcy.
    Answer Applies to: California
    Replied: 1/27/2011
    Greifendorff Law Offices, PC
    Greifendorff Law Offices, PC | Christine Wilton
    A "quit claim" deed does not remove you from the mortgage debt obligation.
    Answer Applies to: California
    Replied: 1/27/2011
    DiManna Law Office, LLC.
    DiManna Law Office, LLC. | Dawn DiManna
    No, that does not solve the issue of you being on the loan if you are on the loan. You should consult with a bankruptcy attorney to find out your options.
    Answer Applies to: New Hampshire
    Replied: 1/27/2011
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