In Part One, collecting support and other family obligations was discussed. Let's take a look at what happens when a Chapter 13 is filed. In a Chapter 13 context, we'll talk about three kinds of debt: 1) child support or alimony that was past due at the time the bankruptcy was filed; 2) child support or alimony that comes dues after the case is filed; and 3) non-support obligations, like responsibility to pay certain debts, or reimbursement for the equity in an asset (lawyers refer to this as "property settlement").
Like Chapter 7, Chapter 13 does not change the obligation to pay ongoing support. In South Carolina, where I practice, the Chapter 13 trustees will not recommend confirmation of a Chapter 13 plan if post-petition child support is behind, if the trustee is aware of that default.
I read Bankrate.com quite a bit, but not because it is such an authoritative source of personal finance information. Rather, I read Bankrate articles because my hometown newspaper reproduces them to fill its personal finance section with content, and they are usually decent, if not oversimplified, synopses of various topics. A recent Bankrate article reproduced in my paper suggests there are three components you should consider prior to filing personal bankruptcy: financial, emotional, and future consequences.
The usual rule in bankruptcy is that an individual's discharge only relieves the debtor of liability for a debt.
Anyone else liable on the debt with the debtor remains liable.
The rule is markedly different in a community property state.
As a recent decision in California illustrates, in a community property state, a community creditor cannot reach the post bankruptcy wages of either spouse, as those wages are protected by the one spouse's discharge.
When one spouse files bankruptcy, all of the community property acquired during the marriage comes into the bankruptcy estate. All of the claims enforceable against the community property are allowable in that bankruptcy case.
Thus, it's only fair that , having gotten their bite out of the (community) apple, any community property that is acquired during the marriage, is free of the pre bankruptcy claims.
Credit Slips notes that when Carissa Byrnes Hessick appeared as a guest blogger on Prawfsblawg, her post on closing on a house, and the comments to that post, amount to a mini-debate on pros and cons of reading contracts before you sign them. Professor Hessick was greeted with astonishment when she and her husband actually read everything presented to them for signing at closing on their home. The comments reveal some reasons why more people don't do that: it's socially awkward, time to read them is not built into the process, it's pointless for a non-lawyer to try to read them, and even "despair."
Missouri lowers the allowable garnishments to 10% from 25% of wages after deductions if the debtor being garnished is the head of a family Few Missouri cases examine the head of a family requirement.
Courts tend to adopt a broad view of the word family. For head of the family status, a debtor has to be actually supporting a household. Making this determination is based mostly on economic considerations for the goal of the exemption is to preserve the family unit. A family is “a collective body of persons who live in one house under one head or manager.” The head of that family is one who “contracts, supervises and manages the affairs about the house, not necessarily a father or a husband.”
You are an attorney. Someone comes to you who got papers handed to him/her by the sheriff's deputy and you see that he/she is being taken to court by Unifund, LVNV, Erin Capital, Calvary Portfolio, or any of a dozen others. Welcome to the world...