My Husband Sexually Assaulted Our Daughter While I Worked a Second Job to Afford Bankruptcy Payments. – Patty

“Dear Lewis,

My husband and I filed bankruptcy in Feb 2010- because he lost his job after the bankruptcy was filed and he had a child support obligation they take the payment from me every 2 weeks. 286.00 dollars. At this point all the payments are made by garnishment of my wages. i cannot live off of 230.00 every 2 weeks so i obtained a second job. During the time that i was at my second job my husband decided to sexually assault my daughter in my absence. she did not tell me til months later. at that point i pressed criminal charges which are still pending at this point and moved out of the house.

My husband soon to be x husband ( i hope) refuses to convert to a chapter 7 bankruptcy. At the time that we filed a joint bankruptcy both his jobs and my one job were taken as income- when he lost his primary job-the bankruptcy had already started and there was no way to ammend the plan at that time- at least from what i was told. Now that we are not together the bankruptcy payments are absolutely making me struggle – i barely am able to spend time with my daughter and i barely have enough to buy the necesaties such as clothing and food. the bankruptcy lawyer said that my only option was to convert to a 7 to do that by myself i would have to hire another attorney – i cant do that because everything that i make goes to basic living and gas and food – absolutely no exstras. He said that if i could not convert with Martin that he will withdraw as the attorney. and i would have no other choice then to find legal representation.

So here is my question – how do i get the court or whoever the trustee to understand that the incomes are completely separate and that i cannot afford to make these payments but cannot afford to hire an attorney because i am making the payments and do not qualify for legal because of the gross income? i have paid these payments for the last 18 months – on my own. My x-husband told me that he would give me money for his portion of the payments but has yet to pay anything at all. so i am paying the vehicles one his one mine – the house payment that he refused to pay and all the medical bills that he had – 85% of the debt was his when we file. Any advise would be of great help.

Patty”

Dear Patty,

I won’t even address some of the personal struggles because of how awful they are. But I am afraid my bankruptcy advice is not good news either.

Your attorney basically has it right. He cannot represent you separately from your husband. It would be an ethical issue with almost any state bar. I cannot agree to represent a married couple, then agree to represent 1 of the two spouses when they don’t agree.

So you are either stuck with dismissing your chapter 13, and filing a chapter 7, either on your own, or with an attorney; or, you could try something else.

But the something else, I have never even done myself as an attorney, let alone someone who has no representation. You could file a motion in court, and ask for a hearing with the judge. You would ask to sever yourself from the chapter 13 and ask for a conversion to chapter 7.

Even if this was all allowed by the judge, you would now have to update some of the bankruptcy forms, submit paperwork to a chapter 7 trustee, and attend another 341/creditor’s meeting.

Are you comfortable in doing all of this with no legal representation? I repeat this almost daily: I never recommend someone file a bankruptcy without an attorney, there are too many pitfalls. And without knowing your complete financial and asset scenario, I could not advise you as to whether you could fall into a pitfall.

I strongly suggest you find a chapter 7 attorney willing to help you.

Unfortunately, your current attorney cannot help because of a “conflict”, and the chapter 13 trustee is not allowed to give you advice since you are currently represented. So you must seek out an independent opinion.

Good luck!

My name is Lewis Roberts and I’m an attorney licensed in Florida and Georgia. My practice focus is consumer bankruptcy, real estate issues/closings, and mortgages. I also have Florida real estate broker and mortgage broker licenses. I am a proud member of the National Association of Consumer Bankruptcy Attorneys (NACBA), National Association of Consumer Attorneys (NACA), and a graduate of Max Gardner’s Bankruptcy Boot Camp. I enjoy helping people with decisions that impact their financial well-being.

Legal Disclaimer: This is for educational purposes only. It is not to be relied upon as legal advice. It also does not create an attorney-client relationship. No such relationship is formed with attorney without a written agreement.

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