Is it true we cannot get a divorce until our bankruptcy has been discharged? 20 Answers as of October 28, 2013

My husband and I are filing for divorce. We filed bankruptcy last September and it was dismissed in January. The bank is now going after our home which I want to keep with our three children. Our bankruptcy case has not been discharged (different from dismissed). We can not file for divorce until they discharge our bankruptcy. I was told they can keep our bankruptcy open for years if they wanted. Can they really do this? I do not want to wait months or years to get a divorce! I also told our lawyer that we do not in anyway want to do the bankruptcy if it will hurt our house. And look where we are..

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Goldsmith & Guymon
Goldsmith & Guymon | Marjorie Guymon
You say your bankruptcy case was dismissed but then say it was discharged. I am confused as to what you mean. If your case was discharged and is still remaining open that should not stop you from getting divorced.
Answer Applies to: Nevada
Replied: 10/28/2013
Stephens Gourley & Bywater | David A. Stephens
If your bankruptcy has been dismissed, you are not going to get a discharge. If the case is dismissed you do not need to wait to file for divorce.
Answer Applies to: Nevada
Replied: 10/24/2013
Janet A. Lawson Bankruptcy Attorney
Janet A. Lawson Bankruptcy Attorney | Janet Lawson
The question is confusing first, you can get a divorce. It sounds like you are in ch13? If so you have to agree on who will make the plan payments. If you are in a ch7 and the trustee wants to take your house because it has equity, get a lawyer to force the trustee to abandon it - this may or may not work.
Answer Applies to: California
Replied: 10/23/2013
Tokarska Law Center
Tokarska Law Center | Kathryn U. Tokarska
If the bankruptcy was dismissed, that means the bankruptcy case is closed. This won't prevent you from getting a divorce if you so choose. Having said that, a divorce may result in significant financial changes, usually not for the better. If it means that you won't have sufficient income to be able to get by and either get a loan modification or file a chapter 13 with a FEASIBLE repayment plan to bring the loan(s) current unfortunately staying in the home might not be realistic though I can't speak on this because I know nothing about your income, debts, assets and how these can be expected to change in a divorce. It makes sense to get a second opinion by discussing your personal financial details with an attorney. You cannot rely on answers here in making decisions on how to best proceed forward.
Answer Applies to: California
Replied: 10/23/2013
Law Office of Thomas C. Phipps | Thomas C Phipps
There is an automatic stay against any lawsuits or collection actiivities. You can have an attorney file a motion for relief from the automatic stay. Of course, this will cost more attorney fees and court costs.
Answer Applies to: Missouri
Replied: 10/23/2013
    Moore Taylor Law Firm, P.A.
    Moore Taylor Law Firm, P.A. | Jane Downey
    No that is untrue. However if your case was dismissed, you aren't going to get a discharge.
    Answer Applies to: South Carolina
    Replied: 10/23/2013
    Law Office of Jeffrey Solomon
    Law Office of Jeffrey Solomon | Jeffrey Solomon
    A divorce can be filed during the bankruptcy. There may be reasons why filing should be delayed. There may be issues as to assets(since the bankruptcy court may have a claim on certain assets). There may be issues as to your budget and analyses of chapter 13 vs chapter 7(one household or two?) These issues should be discussed with your bankruptcy attorney as well as divorce attorney. If you have the same bankruptcy attorney as your spouse, it may be necessary for you each to obtain separate bankruptcy counsel. Joint representation by one bankruptcy attorney might create a conflict of interest.
    Answer Applies to: Florida
    Replied: 10/23/2013
    CARL C SILVER ATTORNEY AT LAW
    CARL C SILVER ATTORNEY AT LAW | Carl C Silver
    If your bankruptcy was dismissed in September, it does not exist anymore and you will not be getting a discharged. I see no reason why you cannot get married unless you want to file a joint bankruptcy first.
    Answer Applies to: Michigan
    Replied: 10/23/2013
    Charles R. Chesnutt, P.C.
    Charles R. Chesnutt, P.C. | Charles R. Chesnutt
    No. But you should wait. The final effect of a bankruptcy discharge is to relieve the pressure of debt. Once that pressure has been relieved, the fears subside and freedom comes back to the home. For many, the relief of debt disappearing and financial life stabilizing again creates a foundation for love to grow again.
    Answer Applies to: Texas
    Replied: 10/23/2013
    A Fresh Start
    A Fresh Start | Dorothy G Bunce
    I don't know who has been giving you legal advice about this issue, but you ought to sue them for malpractice and post bad reviews about them online. Being in an active bankruptcy doesn't prevent you from filing for divorce or even getting a divorce if you and your spouse agree as to a division of property, custody, support, etc. Being in an active bankruptcy can prevent the divorce court from making decisions about the division of property unless the bankruptcy court okays it.
    Answer Applies to: Nevada
    Replied: 10/23/2013
    Law Office of Lynnmarie A. Johnson
    Law Office of Lynnmarie A. Johnson | Lynnmarie Johnson
    If your bankruptcy was dismissed in January, your case is done and over. You will not get a discharged, because when the is dismissed, the court closes the case and doesn't do anything more with it unless you pay to reopen it and fix whatever was wrong that got it dismissed. If it was dismissed in January, probably no way to reopen now. If you can't get a straight answer on this from your attorney, call the bankruptcy court and ask them about the status of your case. Their phone number would on your original Notice of Filing. Are you current on your mortgage payments? If not, that is why the mortgage company is going after your house. The automatic stay that prevented them from doing that, went away when your case was dismissed. That should also take care of the divorce problem, if you are not in bankruptcy because your case got dismissed, you can file for divorce anytime.
    Answer Applies to: Michigan
    Replied: 10/23/2013
    Deborah F Bowinski, Attorney & Counselor at Law | Debby Bowinski
    First of all, if you have a bankruptcy attorney he or she is the one best equipped to answer your questions. Only your attorney will have the information about your case to be able to give you reliable and correct answers based upon the specifics of your case. Some of your questions are not making sense to me. If your case was "dismissed" then it does not exist any longer and you will not receive a discharge. It sounds as though it may actually have been "discharged" in January but that it just has not been administratively closed yet at the court. It also sounds as though the mortgage payments have not been kept up on the home - unless the mortgage loan is brought current and kleptomaniac current you will be unable to stay in your home. You can file for divorce while a bankruptcy case is still pending, but before a judge can enter final orders regarding the division of property and debt you will either have to have the bankruptcy case close or, you will have to file a motion for relief from the automatic stay for the divorce order to enter. If there are asset being administered in the bankruptcy case that could hold up the closure of the case until that process is completed.
    Answer Applies to: Colorado
    Replied: 10/23/2013
    Law Office of Shawn N. Wright | Shawn N. Wright
    It is a bit hard to understand your question. Are you saying that your bankruptcy case has been dismissed? If so, then you are no longer in bankruptcy at all, and you're not going to get a bankruptcy discharge. I'm not sure why your case was dismissed, or what type of bankruptcy it was that you filed. You need to go back and sit down with your attorney and ask him some basic questions so that you understand things better. IF your case has been dismissed, then you are no longer under any Bankruptcy Court restrictions. If this is the case, then certainly you can go ahead with your divorce. It sounds to me that you are the spouse who has remained in the residence with the kids, so you could refile bankruptcy under Chapter 13 to repay the mortgage arrears. And your husband could file a separate bankruptcy case simply to discharge his unsecured debt.
    Answer Applies to: Pennsylvania
    Replied: 10/23/2013
    Hayward, Parker, O'Leary & Pinsky, Esqs.
    Hayward, Parker, O'Leary & Pinsky, Esqs. | Michael O'Leary
    While a bankruptcy case can remain open for years to allow for the Trustee to administer assets, the Discharge is entered approx. 90 days after the case is filed, unless a creditor files a timely objection to your being granted a Discharge. There is nothing stopping you from getting divorced prior to the entry of the bankruptcy Discharge, although as a matter of general "best practices", most people opt to do the bankruptcy first. Whether any of your property would be at risk in a bankruptcy filing is best discussed with competent local bankruptcy counsel.
    Answer Applies to: New York
    Replied: 10/23/2013
    Law Office of J. Thomas Black, P.C.
    Law Office of J. Thomas Black, P.C. | J. Thomas Black
    You should consult your attorney, if he or she still represents you. If your case is dismissed, there should be nothing stopping you from completing a divorce. If the bankruptcy case is still pending, a Motion for Relief from Stay can be filed seeking court permission to complete a divorce. Your attorney should be able to file that for you, or one of the divorce attorneys, if you have one.
    Answer Applies to: Texas
    Replied: 10/23/2013
    Elkington Law
    Elkington Law | Sally Elkington
    If your bankruptcy was dismissed, it is over and you will not get a discharge. You need to sit down with your attorney and get a much better explanation as to what is going on, because your question makes no sense. You do not have to wait to get divorced when in bankruptcy, although there are situations in which an attorney might advise against it. Again, based on the facts that you have stated, it is not possible to give you advice because the facts don't make sense.
    Answer Applies to: California
    Replied: 10/23/2013
    The Troglin Firm | William M. Troglin
    You can get a divorce anytime you want to - the bankruptcy cannot stop it. However, you said you filed in September and it was dismissed in January. If that's the case you must have filed a Chapter 13. If you alone can qualify for a Chapter 13 then you can re-file by yourself to keep the house if your husband agrees to let you have it in the divorce.
    Answer Applies to: Georgia
    Replied: 10/23/2013
    Scott Goldstein | Scott Goldstein
    If your case was dismissed, you are no longer in bankruptcy. The bank, if you have not paid, has the right to foreclose. You need to speak with your attorney to figure out what is going on.
    Answer Applies to: New Jersey
    Replied: 10/23/2013
    Law Office of Stuart M. Nachbar, P.C.
    Law Office of Stuart M. Nachbar, P.C. | Stuart M. Nachbar
    Why was your case dismissed? You can always refile if you did not get a discharge. Get to counsel who knows both Bankruptcy and Matrimonial Law in your jurisdiction.
    Answer Applies to: New Jersey
    Replied: 10/23/2013
    David Andersen & Associates PC | Jeremy Shephard
    You can go through a divorce if you have filed for bankruptcy. You will need to obtain relief from the automatic stay if you are in an active bankruptcy. If your case was dismissed in January then you are no longer in a bankruptcy so you will not get a discharge. If you are no longer in the bankruptcy, you can file for divorce.
    Answer Applies to: Michigan
    Replied: 10/23/2013
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