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I Have to File Bankruptcy But My Husband Says He Won’t Support It And Will Leave Me. – Julie

Julie

“Dear Steve,

I have a failed business and am looking to bankrupcy to receive discharge from SBA personal guarantees and from personal credit card debt used in the business. My husband’s income puts us over the median in our state, I have already been advised by a lawyer that for this reason I will have to file Chp. 13 (I’m filing alone without my husband but still have to count his income.) Problem is, my husband says he will absolutely not pay his income toward my business debts (he’s upset I went so far into debt for the business) no matter what he has to do to protect himself. I have no idea how far he plans to go to protect himself, but, I know he has already taken steps in this regard by opening a separate checking account and changing his direct deposit. He told me he wanted to set-up a household budget and this was a cash management tool, to only put the money we have budgeted to live on each month in the joint account.

Right now I’m living in fear, my phone rings at least 50 times day by bill collectors. I want to resolve this situation. But, I’m afraid to discuss this with my husband because I fear he will file for separation or divorce. He acts like everything is fine as long as we don’t talk about financial matters. I guess he figures I’m just taking care of the problem without involving him. I began having severe anxiety and panic attacks when by business started to decline, that condition is worsening with the financial & marital worries and I’ve actually been hospitalized recently for a mental breakdown. I know if he files for legal separation or divorce he would be, basically, protected from being responsible for my debts or my bankruptcy filing. While that certainly would help me out by allowing me to file Chp. 7 without a problem. My fear is losing my marriage over my debts. I’m afraid that discussing the marital status at all in relation to my debt solutions will just cause us to start heading down that path and what if we never come back.

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I’ve heard that in some cases where a spouse refuses to provide support for another spouse, i.e. that he won’t give me money toward paying my debts, that an affidavit can be signed or submitted to the court to this effect. Have you heard of this. What happens if I file Chp. 13, then I can’t pay because he won’t give me the money. If he’s not part of the filing, can the court or trustee garnish his income? Will it just convert to a Chp. 7 because I didn’t pay? Could it be dismissed altogether with no discharge? I don’t want to waste money filing if I’m going to end up right back where I started. It seems to me that I should be able to convince to court to just start at a Chp 7 due to the marital conflict and fact that my husband won’t support my chp. 13 payment plan. I can’t beleive that bankruptcy laws are drafted in such a way that they would force someone to get a divorce or separation in order to file.

Any suggestions would greatly help!

Julie”

Dear Julie,

Actually what we are dealing with here are a couple of overlapping different situations. I understand your desire to go bankrupt but what is most puzzling is your husbands head in the sand position. While he elects to gleefully ignore your situation and the suffering it is causing you, that is not constructive on his part.

So let’s separate your marriage situation from your debt situation. On the debt side of the equation there appears to be few options other than bankruptcy to allow you to remedy the current situation in your current financial state and income status.

On the marriage side of things, I think you need to ask yourself if this is the person that you want to continue to be married to. It does not sound like he is supporting you in the “for better, for worse” pledge. I can tell you that if I abandoned my wife in her hour of peril that would not be a loving action at all.

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Is he willing to go to a marriage counselor to discuss the issues that are creating a wedge between you? If so, that would be a good place to go to begin to openly discuss the underlying relationship issues that are making this much harder than it needs to be.

It sounds like you have already consulted with one bankruptcy attorney about your situation. But a second opinion would be in order for you as well. Find another local bankruptcy attorney and go in and review the means test. You need to make sure that income that is used to service secured debt is not included as available in the calculations.

In a perfect world you’d be able to get your husband to go to marriage counseling at the same time you are seeking a second opinion for the bankruptcy situation.

The bottom line might just be this is a deal breaker for him and he’s just not willing to continue to be your partner in marriage as a result of your business problems. If so, maybe this situation has helped you to clearly see the man he is.

A final option is always to legally separate and then go bankrupt afterwards to help you get a fresh start. There is nothing saying that you can reconcile latter and get back together.

I called a bankruptcy buddy and ran this situation past him as well and we both agree, ultimately this is not primarily a debt problem, this is a marriage problem first and foremost.

Almost forgot, I have not heard of any free pass affidavit that can be submitted to the court to eliminate his income in this situation.

Here is an exceptionally big hug just for you.

Sincerly,
Steve

You are not alone. I'm here to help. There is no need to suffer in silence. We can get through this. Tomorrow can be better than today. Don't give up.

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P.S. Be sure to read ‘The Secret of Surviving Through Difficult Economic Times. What I Learned On My Journey‘.




About the author

Steve Rhode

Steve Rhode is the Get Out of Debt Guy and has been helping good people with bad debt problems since 1994. You can learn more about Steve, here.

9 Comments

  • While you may have a huge debt load as result a failed business venture, that doesn’t necessarily make your a nonconsumer case. Your home loan is probably consumer debt and you must take that into consideration.

    Any individual, even if self-employed or operating an unincorporated business, is eligible for chapter 13 relief as long as the individual’s unsecured debts are less than $336,900 and secured debts are less than $1,010,650.

    In order to file for Chapter 13, you must compile the following information:

    1. A list of all creditors and the amounts and nature of their claims;

    2. The source, amount, and frequency of the your income;

    3. A list of all of your debtor’s property; and

    4. A detailed list of the your monthly living expenses, i.e., food, clothing, shelter, utilities, taxes, transportation, medicine, etc.

    Married individuals must gather this information for their spouse regardless of whether they are filing a joint petition, separate individual petitions, or even if only one spouse is filing. In a situation where only one spouse files, the income and expenses of the non-filing spouse is required so that the court, the trustee and creditors can evaluate the household’s financial position.

    Based on what I have seen so far, you are not ready to file bankruptcy. You have more important issues to deal with than your debtors. You need to work on your marriage…everything else is secondary.

    Trying to fully address your problem in this is a bit like a doctor trying to treat a patient without a complete medical history. The best advice I can give you is to see a local bankruptcy and possibly a family law attorney as well.

    Carl H. Starrett II
    Law Offices of Carl H. Starrett II
    1941-C Friendship Drive
    El Cajon, California 92020-1144

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