Expert: Mark J. Markus- California Bankruptcy Attorney - 10/22/2008

Question
QUESTION: I live in CA, have an unusual situation. Married 19 years, however my name is not on the deed of the house and all of our accounts have been separate throughout our entire marriage. I got in a terrible mess with credit card debt, I asked my husband if i could transfer 2 balances to 2 of his credit cards because he had a better interest rate and that i promised i would pay him a certain amount of money by certain dates to make the minimum payments until the loans are paid in full.  I also asked my mother and she did the same, I promised to make the payments to her for 2 credit card balances as well.

I also have several cards of my own that i am paying on.  I am so much in debt I am 51 years old and am so sorry for being so stupid for getting into so much debt.  I need to keep my husband out of this completely. These are debts that I occurred solely.

I have a decent paying job, however with the interest and minimum payments my entire check is paying toward these is there anyway i could get some relief by filing a Chapter 13? I feel like I would never be able to get out of this debt.

1. Would I be able to get this help without them going after my husband's credit or his property under this unusual situation?
2. Would  I be able to arrange that I personally write out the checks each month to pay my mother and husband for the 2 credit cards that they each took out for me and the Trustee take care of my personal credit cards?


ANSWER: I'm sorry to hear about your circumstances.  

Eligibility for any bankruptcy case can only be determined after a comprehensive consultation with a bankruptcy attorney  It is far beyond the scope of this forum.  That having been said, I will try to answer your questions:

1.  If the debts were incurred during the marriage, your husband is liable for them.  If you file a bankruptcy his community property assets will be protected by the discharge you get (if you get a discharge) as long as you remain married.  His separate property assets (if any) will be subject to collection after the bankruptcy case is over.

2.  Certainly not for your husband.  Your mother would potentially be a creditor in the Chapter 13 case and would receive payments from the Trustee from the monthly plan payments you'd be making.

---------- FOLLOW-UP ----------

QUESTION: Thanks for the quick reply. Im sorry, i am a little confused. Did u remember that I said the deed to the house is in his name only, i am not on any of his accounts. Wouldnt this unusual circumstance make him not liable?

Also, what do you mean by if I get a discharge? What do you mean by his separate property assets will be subject to collection after the bankruptcy case is over? thank you.

Answer
This is way too involved to deal with in this format, I'm sorry.  You need to consult with a bankruptcy attorney in your area and possibly with a family law attorney to explain the community property/separate property distinctions.  All debts incurred during the marriage are community debts in California unless you have a prenuptial agreement stating otherwise.