Bankruptcy, Marriage and Community Property?

[Fobbed-Fodder]

Dear Soc

It has become apparent my wife & her attorney are going after my (ERISA) retirement pension.

Background;

my wife filed for chapter 7 bankruptcy as an individual debtor, primarily listing only her debts and some community debt and none of my debt, she was discharged roughly 60 days thereafter.  She listed me as a co-debtor on one (1), community debt, no big deal approx $1,200 bucks.

I filed for chapter 7 bankruptcy as an individual debtor and was discharged in Feb/04.  Consequently I listed ALL my debts, All her debts and All the community debts and I named her as a co-debtor on all debts that were legit community property, this includes community debt that she failed to list within her separate bankruptcy filling.

She sent me a notice of her bankruptcy filing, and I sent her a notice of my bankruptcy filing also.  Neither her nor I filed a claim against the other while each others respective cases were open.  I also listed her divorce attorney as a debtor and gave him appropriate timely notice, he to did not file a claim against me.

In my bankruptcy filing I listed my qualified ERISA retirement pension, this retirement was exempt from attachment from creditors and the bankruptcy trustee as provide under section.  522(10)(E) of the bankruptcy code.

My questions are;

1.)   How does the fact that we each separately filed bankruptcy after the filing of divorce, but prior to a final divorce decree affect community debt and property in regards to the courts requirement to "equalize or balance" the marital property and debt?

2.)   Does my wife still have a right to ½ of the ERISA retirement pension that accumulated during the marriage or did she loose that right because she did not file a claim against my case?

3.)   Can my wife still be awarded attorney fees even though I listed her attorney as a debtor?

4.) any suggestions on how I might best proceed in protecting my retirement?

From what I understand the bankruptcy court is a higher court than the state superior court handling our divorce, so I am thinking that, because they missed the boat and did not file a claim in bankruptcy court that they are flat out of luck because superior court cannot overturn the bankruptcy discharge.

As always your wisdom is always appreciated

Thanks so much

[socrateaser]

>1.)   How does the fact that we each separately filed bankruptcy
>after the filing of divorce, but prior to a final divorce
>decree affect community debt and property in regards to the
>courts requirement to "equalize or balance" the marital
>property and debt?

Without going into excrutiating detail, I will simply say that under your facts as posted, your wife has lost no interest in her portion of the marital estate.

>
>2.)   Does my wife still have a right to ½ of the ERISA
>retirement pension that accumulated during the marriage or did
>she loose that right because she did not file a claim against
>my case?

She still has all of her rights and interests in her portion of your retirement.

>
>3.)   Can my wife still be awarded attorney fees even though I
>listed her attorney as a debtor?

Yes. Nothing has changed.

>
>4.) any suggestions on how I might best proceed in protecting
>my retirement?

Don't ever get married again.

>
>From what I understand the bankruptcy court is a higher court
>than the state superior court handling our divorce, so I am
>thinking that, because they missed the boat and did not file a
>claim in bankruptcy court that they are flat out of luck
>because superior court cannot overturn the bankruptcy
>discharge.

The bankruptcy court has authority to deal with the personal unsecured non-exempt debts of petitioners. Debts between spouses that have not been made part of a final judgment of divorce are exempt from the bankruptcy court's authority, for a host of reasons, not the least of which is, that until your divorce is final, each spouse's interests in the marital estate are not fixed and certain, and until the family court makes a final judgment, the debts cannot enter either spouse's bankruptcy estate.

So, nice theory -- nice, but wrong.

[Fobbed-Fodder]

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