Bankruptcy & Separation - Which to file first?


#1

My husband and I are separating and have agreed to file Ch 13 bankruptcy. We have put together our separation agreement that contains the details of the bankruptcy such as we agree to each pay 50% of the trustee fees each month and we’ll have our house on the market for a specific time period and price, splitting the money we make on the sale. We also stipulate in the agreement that if either one of us defaults on the monthly payments or the house does not sell after the time period, we each can choose to roll over to a Ch 7 bankruptcy at that time.

Do you see any issues with with this type of agreement and us separating before we file the Ch 13 or do you recommend we file the Ch 13 then the separation agreement? Our bankruptcy attorney says we can convert from chapter 13 to chapter 7 at any time in the case regardless of whether or not we are separated or even divorced at that time.

Thanks in advance!

Concerned Wife


#2

I do not practice in the area of bankruptcy law and would advice you to consult with an attorney who does.
Separation Agreements are not filed.


#3

Erin,

I appreciate the reply. For the separation agreement to legal, is the process notarizing our signatures and adding it to the county records? If not, can you guide me on this please? Do we need to have an original signature copy of our own as well?

Thanks,

Concerned Wife


#4

The Agreement is a binding and enforceable contract once signed an notarized by each of you. I do not recommend you have the entire agreement recorded with the register of deeds in order to protect your privacy. If you need to have the agreement recorded (if one of you will be purchasing real property prior to divorce) you should execute a memorandum of the agreement and have that version recorded. You will need an original to present to the register of deeds if necessary.