Filing for divorce and ex contesting

[michlyn]

I have been separated for over a year now. My ex got in his truck one night and drove off and left me with all the debt...mortgage, household bills, car loan payment. I was just finishing school and had no income at this time. He hadn't worked in over 2 years. I contacted lawyer who drew up a separation agreement, in which he took to a lawyer. He disagreed with some issues in it. The main concern was getting the house sold as I wasn't able to make the mortgage payments. The house finally sold, and there was a balance owing. I voluntarily returned the car as I couldn't afford the payments. One good thing was I was able to find full time employment rather quickly. After the house closed and the car was returned, and with all the other debt I had but wasn't able to pay I filed for bankruptcy. He isn't able to file for bankruptcy because he hasn't been discharged from his first one. I now want to file for divorce but I am afraid that if I do, he will contest it because now all the debt is on him since I filed for bankruptcy. I didn't have a choice but to do this otherwise my two kids and I would've been out on the street. My question is if I do file for divorce and he contests it because of the debt he now has, does he have a chance in court before a judge in making me pay some of it even though I wrote it off through bankruptcy?

[microcrashboy]

As far as I know (I just discharged and cleared my bankruptcy) that the only things that you would have to continue to pay aside from the "payment plan" setup by the trustee is student loans, child support, and I beleive one other.

You see bankruptcy law prevails here and the judge would have to look at that. Make sure you do your homework on that - do not rely on the fact the judge would know. Talk to your trustee explain everything to them ask them the sections of law so you can provide to your lawyer, speaking of which make sure you have a lawyer and talk to them.

If you are bankrupt you may quailfy for legal aid even if you are working - depending on what you make.

[Tayken]

Originally Posted by michlyn

I have been separated for over a year now. My ex got in his truck one night and drove off and left me with all the debt...mortgage, household bills, car loan payment. I was just finishing school and had no income at this time. He hadn't worked in over 2 years. I contacted lawyer who drew up a separation agreement, in which he took to a lawyer. He disagreed with some issues in it. The main concern was getting the house sold as I wasn't able to make the mortgage payments. The house finally sold, and there was a balance owing. I voluntarily returned the car as I couldn't afford the payments. One good thing was I was able to find full time employment rather quickly. After the house closed and the car was returned, and with all the other debt I had but wasn't able to pay I filed for bankruptcy. He isn't able to file for bankruptcy because he hasn't been discharged from his first one. I now want to file for divorce but I am afraid that if I do, he will contest it because now all the debt is on him since I filed for bankruptcy. I didn't have a choice but to do this otherwise my two kids and I would've been out on the street. My question is if I do file for divorce and he contests it because of the debt he now has, does he have a chance in court before a judge in making me pay some of it even though I wrote it off through bankruptcy?

Here are the questions you have to consider on filing for divorce:

1. Are all issues settled between the two parties?

a. Custody and access of any children.
b. Child support.
c. Equalization of assets.
d. Spousal support.

2. Bankruptcy isn't a reason that a divorce would be granted unless there are outstanding issues not resolved between the parties in point 1.

3. File for divorce, serve the paperwork and see what happens. The contesting of a divorce has rules, read the rules in the Divorce Act.

4. Debt incurred during the marriage that is "shared" would require joint bankruptcy to dissolve. Joint debt is identified by the debt holder and financial statements are easy to obtain to prove the ownership of the debt. Any debt you incurred during the time you resided with the other party may be "joint". But, a bankruptcy court wouldn't allow you to absolve yourself of debt held in both names.

Good Luck!
Tayken

[michlyn]

Thank you for both responses. It got me thinking and I decided to do some research into these issues (I work in the legal field but not family law). This is what I came up with:

1. Even though the debts were "joint" and I wrote them off on my bankruptcy, if there was an issue the creditors would've opposed it and they didn't. My trustee would've also advised me that I wouldn't have been able to. I had no trouble writing the debts off with the creditors.

2. After a spouse writes the joint debts off, the creditors do go after the other spouse that holds those debts. Unfortunately for him, he failed to get discharged from his first bankruptcy and he cannot file another one until that happens.

3. There are case laws where one spouse has filed for bankruptcy and the other hasn't. In one case that spouse wanted spousal support due the financial hardship he/she was left in. A judge will not order spousal support based on the fact that one spouse has filed bankruptcy and the other hasn't and has to pay the debts.

As for the other issues, there really aren't any to be contested. My only worry now is him going for spousal support because he hasn't worked since 2009 (he quit his job). I haven't found any case law regarding this issue as of yet but I'm determined!

Michylyn