Who will retain custody of the house after a chapter 13 bankruptcy? 11 Answers as of November 16, 2011

Who retains the house will be left for the state court to decide - not the bankruptcy court.

The filing of a Chapter 13 during a divorce is often a catastrophic mistake, as to the extent a court lets you pay less on debt, the divorce court may find you can pay more in support. Do not do it unless your divorce lawyer recommends it.

All a bankruptcy will do is eliminate your obligation on the mortgage and any other debts you may have other than child support or spousal support you may to paying. If there is equity, the bankruptcy trustee may be able to sell the house, divide the proceeds with her and use your half to pay your creditors. If there is no equity or not enough for the trustee to want to sell the house, if she continues to make the payment on the house so the lender has no reason to foreclose and if he family law court finds it in the best interest of the children to keep the family home, she can stay there. The family law court can still require you to make payments to her so she can make the mortgage payment even if you are no longer legally obligated to pay the mortgage holder. You fight is in family law court to have the house sold and not with the bankruptcy court as it cannot do anything to affect her occupancy unless the trustee takes the house to sell it to use your 1/2 to pay your creditors.

If the mortgage payment is being made, then the home will not be lost just because you filed bankruptcy.

Sorry, as a co owner and co debtor she can stay there if she pays the mortgage. The key here is that she is obligated on the note. If she is she can stay and pay.

It sounds like you are representing yourself in the Divorce since you are really being hosed. Does the spouse work and if not why not? You need a good Divorce Lawyer. It is a shame for you to have to ruin your good credit.

Unless your children are already in high school, the likely outcome in the dissolution action is that the court will order the house sold, unless the financing is under water. Finish the dissolution first. If you file a Chapter 13 so long as you make the plan payments your property will remain secure, so doing so will not affect the right of possession of the house. Since I also do family law I will say to you that the very worst thing you can do to your kids is get into a fight over them. We have lots of research that says that if the parents stay involved with the kids it doesn't matter much what the custody arrangement is, long term the kids will do alright, but if the parents are fighting over them, they are the ones who lose.

The person entitled to possession of the house will be determined by the divorce decree entered by Family Court. The bankruptcy process will not have any effect on the right to possession between spouses or ex-spouses.

That is not a question that would be up to the Bankruptcy Court. The Judge in your divorce would have the final say so as to which of you get the house.

The answer depends on your family law order. If there is an order related to your divorce ordering you to make certain payments, you must have the family law court resolve that - i.e., reduce it. If you file a bankruptcy case and the family law order says such amounts are child support or otherwise must be paid by you, the bankruptcy court will respect that. If in your bankruptcy you list the debt secured by the house and surrender it, you will not be personally liable to pay for it, but you cannot control what is done with the house. However, you must consult family law counsel to determine whether you will nevertheless continue to be obligated to contribute funds to pay the house anyway. In short, you must urge the family law judge to reduce your obligations. If there is no order, you probably should go ahead and file your bankruptcy as soon as possible (it seems to me a Chapter 7 case should suffice).