Does a joint chapter 13 bankruptcy have to be completed before filing for divorce? 15 Answers as of February 29, 2012

We are filing for a Chapter 13 BK. I however would like a divorce, can the divorce process be started before the trustee approves the BK plan?

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Janet A. Lawson Bankruptcy Attorney
Janet A. Lawson Bankruptcy Attorney | Janet Lawson
Yes, that can be done, but how will you deal with the plan payment? It is possible to bifurcate the case and have one of you go into ch7. You should see a lawyer about this.
Answer Applies to: California
Replied: 2/29/2012
Dungan, Lady, Kirkpatrick & Dungan PLLC | Michael Dungan
I just finished a divorce with this very issue. We filed for divorce while Chapter 13 proceedings were pending. The couple was able to get divorced, that is, the divorce was granted and they became single people again, but, we were unable to resolve the property issues because all property is under the jurisdiction of the bankruptcy court. We had to wait almost three years to have a trial on the property issues.
Answer Applies to: Michigan
Replied: 2/28/2012
Law Office of Michael Johnson
Law Office of Michael Johnson | Michael Johnson
It does not need to be complete, but both are responsible for the payments
Answer Applies to: Florida
Replied: 2/28/2012
Stuart Jon Bierman  Attorney at Law
Stuart Jon Bierman Attorney at Law | Stuart Jon Bierman
Usually, the answer is yes. The divorce judge will take into account that a bankruptcy has been filed, but one can file for divorce before the BK Plan is approved. You may also have to notify the Trustee regarding any significant change in your financial circumstances, such as household income if you plan to separate, and that might complicate the BK process. So, it is possible to file for divorce but it may be advantageous to wait. You should consider hiring a divorce lawyer who is a general practitioner and also does BK cases.
Answer Applies to: New Jersey
Replied: 2/28/2012
Bankruptcy Law office of Bill Rubendall
Bankruptcy Law office of Bill Rubendall | William M. Rubendall
A married couple can file a joint petition for bankruptcy. They can divorce at any time thereafter.
Answer Applies to: California
Replied: 2/27/2012
    Philip R. Boardman, Attorney at Law
    Philip R. Boardman, Attorney at Law | Phil Boardman
    No, you can begin the divorce proceedings before you finish the plan.
    Answer Applies to: Virginia
    Replied: 2/27/2012
    Indianapolis Bankruptcy Law Office of Eric C. Lewis
    Indianapolis Bankruptcy Law Office of Eric C. Lewis | Eric Lewis
    A divorced couple cannot file a joint bankruptcy petition.
    Answer Applies to: Indiana
    Replied: 2/27/2012
    Heupel Law
    Heupel Law | Kevin Heupel
    Yes, you can "bifurcate" your case now and then proceed with the divorce. Or, you can have your chapter 13 plan confirmed, get a divorce, and then bifurcate the cases. The timing of when to do it depends on the parties' income and debt so be sure to consult an attorney before making a decision.
    Answer Applies to: Colorado
    Replied: 2/27/2012
    Ross Smith, Attorney at Law
    Ross Smith, Attorney at Law | Charles Ross Smith III
    You can start now and continue after the divorce. But it's going to be more complicated due to the divorce. Be sure to get an attorney. They will more than pay for themselves.
    Answer Applies to: Ohio
    Replied: 2/27/2012
    Charles Schneider, P.C.
    Charles Schneider, P.C. | Charles J. Schneider
    It is probably unwise to be jointly in a chapter 13 and seeking a divorce. This is best asked of the attorney who filed the case.
    Answer Applies to: Michigan
    Replied: 2/27/2012
    Diefer Law Group, P.C.
    Diefer Law Group, P.C. | Abel Fernandez
    I don't know if it is a good idea to have a joint chapter 13 during a divorce. There are a lot of things that will need to be considered such as who will make the payment? How about if one person is not cooperating and making their portion of the plan payment? If you are divorcing, I would look into whether you can file individual cases instead.
    Answer Applies to: California
    Replied: 2/27/2012
    Law Office of J. Thomas Black, P.C.
    Law Office of J. Thomas Black, P.C. | J. Thomas Black
    Here in Texas, for a divorce to be final there must be a division of property. Once a bankruptcy is filed, the divorce court no longer has the authority to divide the property without the bankruptcy court's permission. So to answer your question, yes it is possible to obtain a divorce during a bankruptcy. But your bankruptcy attorney or your divorce attorney must file a Motion for Relief from Stay to seek bankruptcy court permission to complete the divorce. Additionally, if you will be living separately and therefore have more living expenses than you counted on in the chapter 13 filing, it may affect the "feasibility" of your chapter 13 plan. If you can no longer afford to pay the payments to the Trustee, your plan may no longer work. But if you can afford it, even living separately, then yes there is no reason why you both could not continue in the chapter 13 so long as the payments are paid to the Trustee. In fact, if the case was filed jointly, by both spouses together, it is possible to ask the bankruptcy court to "sever" one spouse, and either dismiss that spouse, or convert that spouses case to a chapter 7 case, if that is what they want to do. That spouse may need to hire their own attorney however. Review all of these options carefully with your bankruptcy and divorce attorneys.
    Answer Applies to: Texas
    Replied: 2/27/2012
    Law Office of Lynnmarie A. Johnson
    Law Office of Lynnmarie A. Johnson | Lynnmarie Johnson
    You have to be married and have not filed as of the day your bankruptcy is filed. I have had many people get divorced after filing, but never before confirmation. While it might be possible, I would generally suggesting waiting until after confirmation, to ensure that both of you are responsible for the payments and debts. Of course, each circumstance can be different, so I would suggest meeting with an experienced bankruptcy attorney before you do anything.
    Answer Applies to: Michigan
    Replied: 2/27/2012
    Carballo Law Offices
    Carballo Law Offices | Tony E. Carballo
    Yes so long as you are married when you file you can be divorced anytime later and the case will remain a joint case to the end. You cannot separate the case so you are in the bankrutpcy case together to the end. It better be a friendly situation because otherwise it will be tormenting to be joined in a Chapter 13 for years while involved in a divorce battle. You better figure out how the trustee payments will be made since usually only one cashier's check or money order should be sent in. There is nothing wrong with what you are planning to do if you can both get along.
    Answer Applies to: California
    Replied: 2/27/2012
    Debt Relief Law Center | Roger J. Bus
    As long as you are legally married when the Chapter 13 case is filed, you can file a joint Chapter 13. However, if you get divorced while you are in Chapter 13, the Chapter 13 Plan continues on as a joint case. The Trustee will also not get involved as to who is to pay for what in the Chapter 13. It if the responsibility of both parties to make sure the full Plan payments are received. So, for example, you are divorced and then pay in 50% of the 13 payments as ordered by the divorce judgment, yet your ex-spouse pays in zero, your Chapter 13 case will still be dismissed. It is up to you and your divorce attorney to enforce the terms of the divorce judgment- the Chapter 13 Plan will not be split as to payments being made. If the full Plan amount is not received each month for whatever reason, the Chapter 13 Trustee will still file a Motion to Dismiss for failure to make Plan payments.
    Answer Applies to: Michigan
    Replied: 2/27/2012
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