Superdischargeability??

[kdowd771]

What is the name of your state? Texas
I just got off the phone with my divorce lawyer and was in a nice way chewed out for filing a chpt 7 BK instead of a chpt 13.

Background info: Divorce is going no where, psychotic STB EX spouse put money down for a jury trial and have been trying to get it done for the past 17 months. Costing me over $1800 per month. My lawyer advised me to file BK. Went to BK lawyer and he said to file 13 and I would end up paying back 100% of the $40K in CC debt over 5 yrs. I came back a couple of days later to work with the legal Assisitant and do all the paperwork. In between I had educated myself through this BB and web sites on the pros and cons of 7 or 13. Well I ended up getting my disposable income down to way in the negative number each month. I thought since a 13 with 2 houses foreclosed on is just as bad as a 7 I might as well go for the 7. Why do a 13 pay back 100% of $40K and still have the negatives of a 7 affect you? Might as well file the 7. SO I did. BK was filed on 16 May.

Well my divorce lawyer found out I did a 7 and is now irritated at me. Says the 13 protected me from any possible court ordered compensation that might be considered by the court as alimony or spousal support. A superdischargability clause he called it. WHAT THE HECK IS HE TALKING ABOUT??? No one mentioned this prior to seeing the BK lawyer.
I have not heard about this. When I found out the difference in price between a chpt 7 and 13 and how the BK lawyer did not attempt to get my disposable income lower I felt he was trying to get the bigger paycheck. Not sure what other states charge but a 7 here will cost about $1200 and a 13 costs about $2300.
Back to the question though, has anyone heard of a superdischargeability clause??

 

[Ladynred]

Nope, never heard of it. Spousal and child support is NOT dischargable in ANY CH of bankruptcy, so I don't know what your lawyer was talking about with this 'superdischargeability" thing or saying you had some 'protection' with a Ch 13 against alimony/spousal support.

 

[HomeGuru]

.... so I don't know what your lawyer was talking about with this 'superdischargeability'

**A: yes, isn't that the word they used in the movie Mary Poppins when the chimney sweep corporation filed Chapter 13?

 

[Ladynred]

ROFL HG !

I belive that was ..

Supercalifragilisticexpialidocious !!!

 

[kdowd771]

Ok if I did do a chpt 7 and I lose the 2 houses and the CC debt is discharged. During the divorce can I get hit with something that is not dischargeable? We had no kids so child support is out. We will be married 8 yrs in july 2 yrs seperated. Not that it matters in a community state. She has 2 real estate licenses. 2 cosmotology licenses. Has been a rental property manager and retail store assistant manager. So I would think spousal support is out. We have very little assets. But now that I have filed for BK I have no debt or at least won't once the BK is discharged. SHe however has, at last count $45k in CC debt!! None of it has mine name attached to it though. Can I get slammed with that even though my name is not on the cards?

 

[Ladynred]

Your name is not on the cards, but you live in a community proprety state, so the creditors could come after you for it. The judge in your divorce case could assign all that 45K debt for you to pay completely, THAT would be nasty.

Now, the key question here is, DID you include your STBX as a creditor in your bankruptcy ? If so, did you list this 45K in 'possible' debt on your papers as well ?? This would be considered 'contingency' since you don't know for sure that you WILL get stuck with it and don't know EXACTLY how much it would be. This is perfectly legal and it WILL protect you against even the divorce judge should your STBX try to dump that on you. If your lawyer didn't write it up this way, you need to call him/her back ASAP and ask about amending your creditor matrix to reflect this. If it was written up and she was included with her 45K in debt, then even a divorce court cannot make you pay a discharged debt and she can't sue you for it later either !!!

Next question.. you've been separated for 2 years, is it a LEGAL separation with papers filed with the court ?? Did she incur any of that 45k AFTER the separation ? Any debt incurred in this way after a LEGAL separation is no longer considered a 'community' debt and it would be completely HER debt.

 

[kdowd771]

DID you include your STBX as a creditor in your bankruptcy ?

No I did not list her as a creditor. She was listed a s a cosigner on the mortgage on one of the houses. That was the ONLY place she was listed on the BK.

Next question.. you've been separated for 2 years, is it a LEGAL separation with papers filed with the court ??

NO Texas does not recognize legal seperation. According to my lawyer in Texas you are either single or married.

Did she incur any of that 45k AFTER the separation ?

Not 100% sure on how much she had at time of seperation but I do know that she has racked up $18,000 in the last few months.

 

[Ladynred]

Ok.. I didn't know TX doesn't recognize legal separations.. geez.. what an anachronism !

Anyway..

If I were you, I would definitely call you BK atty ASAP and ask about getting your STBX added as a creditor. Adding her that way is about the only way you'll be able to keep from getting slammed with that 45K debt of hers in the divorce. This is one of the top recommendations for divorced or divorcing people, inlude your EX or STBX as a creditor. Your lawyer should have recognized this so I'd get on that soon. You can amend your papers anytime, but pre-341 meeting is better.

Your debt to her, if it happens, is considered 'contingent' and is defined this way:

"The claim depends on some event that hasn't yet occurred and may never occur."

It should go on your Schedule F as a non-priority unsecured claim.


As for the debt she racked up after separation... I'll have to go back into the TX statutes to see if it makes any difference. If TX doesn't recognize separations, it may not.. but you never know.