An obligation to pay debt is based on an agreement between the individual(s) and the creditor. A spouse is not responsible for the debt of the other spouse solely because of the marriage. If only one spouse contracted to pay a debt, than only that spouse is responsible for the debt. If both spouses are obligated and have contracted to pay the debt, than both spouses are responsible for 100% of the debt. If both spouses contracted to pay the debt, the creditor may pursue and collect any percentage of the debt from either spouse, but never in excess of the total amount due. In other words, the creditor may get 60% from one spouse and 40% from the other, or 20% from one spouse and 80% from the other spouse.
If two people wish to file for bankruptcy together, the two individuals must be married. In general, it is not necessary for both spouses to file for chapter 13 or 7 protection. When evaluating whether one spouse should file individually or jointly, each person should carefully consider their entire financial circumstances, independently, and together with the other spouse. It may not be beneficial for both spouses to file for bankruptcy protection.
An individual who files for chapter 7 bankruptcy protection and meets all of the criteria, will discharge and eliminate certain debt. The following scenario relates to a married couple that owes a joint debt to a creditor and only the husband files for chapter 7 bankruptcy protection. If the husband meets all of the chapter 7 criteria for a discharge, his debt to the creditor will be eliminated. However, the creditor will be permitted to pursue the wife for any balance due to the creditor because she is not protected from the bankruptcy filing. If they file jointly and obtain a discharge, the creditor will be unable to pursue him and/or her for the debt.
Unsecured debt is debt that is not secured by property, such as the following: credit card debt; personal loan; and, health care debt, etc.
The following pertains to a chapter 13. In a chapter 13, the individual(s) who file (debtor) must make monthly payments to a trustee (administrator), generally, for a period of 36 to 60 months. The amount and number of the payments are based on numerous factors. Also, the determination as to which creditors are entitled to funds from the monthly trustee payment, is based on numerous factors. The debtor may be required to pay all, a portion, or none, of the unsecured debt, through the monthly trustee payments (bankruptcy plan).
In a chapter 13, the debtor is required to treat all unsecured creditors equally. Therefore, a spouse filing individually, may not decide to pay 100% of the debt to one credit card company and 5% to another credit card company. Typically, if one unsecured creditor is paid 100%, than all unsecured creditors must be paid 100%. If the unsecured creditors are receiving less than 100%, each creditor must be paid on a pro rata basis.
The following scenario relates to a husband who owes a joint debt with his wife, and files a chapter 13, individually and without his wife. Immediately upon the filing of a chapter 13, the «automatic stay» and «co-debtor stay apply. The «automatic stay» prevents the husband’s creditors from pursuing any action against the husband. The «co-debtor stay» initially prevents any creditor from pursuing the non bankruptcy filing spouse (wife), who owes a joint debt with the fling spouse (husband). However, the court will permit a creditor to pursue the non bankruptcy filing joint debtor spouse (wife), if the filing spouse (husband) does not pay 100% of the debt to the unsecured creditor. In other words, if a chapter 13 Joint debtor spouse, who files individually, pays less than 100% to an unsecured creditor, the creditor can apply to the court for permission to proceed against the non filing joint debtor spouse, for the balance that will not be paid through the trustee payments.
An individual may file a chapter 13 for the purpose of saving a house from foreclosure. Typically, if the mortgage(s) and note(s) are in the name of both spouses, and they are unable to modify any mortgage and/or note, only one spouse must file to save the house from foreclosure.
An individual may file a chapter 13 for the purpose of saving an auto from repossession. Generally, if the financing, is in the name of both spouses, and they are unable to modify the financing agreement, only one spouse must file to save the auto from repossession. If the financing is in the name of one spouse, typically only that spouse would need to file to save the auto. This interpretation may vary.
New Jersey Bankruptcy Lawyer, Robert Manchel, Esq. is the author of this article. Robert Manchel is Certified as a Consumer Law Bankruptcy Attorney by the American Board of Certification, which is accredited by the American Bar Association.
You can obtain additional information about bankruptcy by calling Mr. Manchel at his toll free number 1(866) -503-5655 or by visiting his web site at http://www.bankruptcylawyer-nj.com
Robert Manchel handles cases from the following counties: Cumberland :County; Atlantic County; Salem County; Gloucester County; Camden County; Burlington County; Hunterdon County; Somerset County; Middlesex County; Ocean County; Mercer County; Monmouth County; and, Philadelphia.
Disclaimer: The bankruptcy laws are complex and may be applied differently, in each case, and State. There may be numerous exceptions and variations for each law and rule. Do not rely on the information provided in this article. If you are considering filing for bankruptcy protection or have foreclosure issues, you should consult with an experienced lawyer. We are a debt relief agency. We Help people file for bankruptcy relief under the bankruptcy code.
© 2008 Copyright by The Law Offices of Robert Manchel. All rights reserved.
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