Separation post-bankruptcy and foreclosure


#1

Long story short, this isn’t the frist divorce for either of us. I’m afraid for my safety because he “self-injures” and blames me because I make him angry and he’s “proud of himself for not hurting me”. Not an entirely safe environment, but not critically urgent as far as imminent danger.

Both of us have children but none together. Fighting used to be a problem but it’s settled down tremendously, but there’s no question it’s over.

Complications - we are currently in a ch7 bankruptcy and are letting the house go into foreclosure. BK atty has issues with us separating before it’s discharged due to conflict of interest problems, so we have 2-3 months where we have to co-habitate, is my impression. It takes 60-70 days to get discharged from a ch 7. We understand we are in this together as far as the bankruptcy and will continue to present a united front and do what is necessary.

I’m trying to get a separation agreement drawn up, before it gets ugly, and since there’s no house to distribute, likely, and we’ve agreed to take what we came into the marriage with, it seems most things are agreed upon or easily done so as far as property distribution.

Here’s my problem. How do we do a separation agreement such that post bankruptcy discharge, and while the mtg co in still in foreclosure mode, my father can buy a house for me in his name, to live in with funds I borrow from my father (downpayment), and protect myself from my husband having any claim to the new house? Timing wise, I’d like to do the separation agreement now, get the ch7 discharged, then let my dad buy the house and move and let him remain in the marital residence while it’s being foreclosed on. Is this even possible, or am I missing something? I already have a notarized free trader agreement.

I’ve done my own sep agreements before, but not had these unusual complications. Can I file a memorandum of separation based upon our separation agreement now, while in ch7? Can I write it such that it says we will physically separate as soon as the ch7 is discharged? Am I imagining that it’s a problem if we separate while in ch7 and worrying for no good reason? Would the $199 package cover a case such as this? I’m perfectly comfortable with most documents and filing procedures - I just need help staying within the bounds of legal and making sure we are protected in moving forward with our lives. I need help with checking legality and wording.

One more complication - the “surrender” of the marital properly is not expected to yield any positive result, but there is a small chance the mortgage company will come back with a modification and settlement offer to get the payment down to where I can afford it by myself, and my husband has agreed I can have the house and he will sign a quitclaim deed to accomplish this with the separation agreement. I think I can handle that wording but I need it checked by someone more knowledgeable.


#2

Your separation agreement should address the joint bankruptcy. As for your new home, if your father purchases the same for you no free trade agreement is necessary as your name will not be on the home. I would suggest you discuss this with your bankruptcy lawyer as well.
A memorandum of agreement cannot be filed until you have a valid separation agreement, which should not be done until you are ready to physically separate.


#3

Ok… so will the $199 be adequate to cover my situation?

I need to let my bk atty know what? That we are separating, or that my dad is buying a house?

In what way do we need to address the ch 7 in the separation agreement?

In the examples of separation agreements, the agreement was signed, usually, before the date of physical separation, sometimes as much as 2-3 months. This is what I want to do - settle things now since they are so complicated, then we will know who is moving out when, and what will happen until then as far as completing the bankruptcy, quitclaim, etc.


#4

Oh, and I got that the memorandum is after the separation agreement… for which I can’t find a template anywhere on your site…


#5

The DIY service provides a library of forms, such as draft separation agreements and memorandums of agreement.
You need to let your bankruptcy attorney know that you are planning to separate and that your father is buying a house in which you will live.
A separation agreement can be signed prior to separation, but can be invalidated if one party later contests the same and argues that it is not valid as a separation agreement (and that parties reconciled after signing and resumed the marital relationship during the prolonged cohabitation.)


#6

I’ve seen paragraphs in separation agreements that state that if the parties reconcile, that all terms in the contract stand as if they had not including property division. It is in several of the example agreements provided on this site. Would that protect both parties from a perceived “reconciliation”?


#7

The agreement should be executed at or near the time of actual separation.


#8

Ok, I understand that now. I still have the question though - the part I’ve seen in the examples that says that if the parties should reconcile in the future, the terms of the agreement, esp property distribution and who pays for what, still stand - is that something I should and can still include?


#9
  1. Rescission. No action to rescind this Agreement shall be brought until the party making such rescission request has first returned, or offered to return, all benefits received hereunder.

Does this give either party the right to rescind without the other party’s consent?


#10

I cannot offer specific advice on what provisions you should or should not include in your Agreement. There would have to be a specific reason for recession (which is also a breach).


#11

OK, rephrase of the question based upon an answer I received earlier about the separation agreement being invalidated because of perceived reconciliation. Does the paragraph I quoted about the terms of the agreement standing should the parties reconcile actually work (meaning make the property division and other provisions stand and enforcable), if say, we get back together in 10 months. I pulled it from one of your example separation agreements on the site.


#12

Yes, such a provision will protect distributions made under the agreement.