ex issues

[frustrated0909]

What is the name of your state (only U.S. law)? PA

My ex-husband and I had a separation agreement (02/08) stating that each party was responsible for 50% of the household expenses (mortgage, taxes, insurance, utilities, repairs), regardless of living arrangements, until the property was sold. He failed to uphold that committment, and left me $8k+ out of pocket. The house finally sold (0609), and now I have been seeking repayment from him. I filed a claim in small claims court, and our original hearing was scheduled for 9/16. He asked for a continuance because he was seeking an attorney. The hearing was rescheduled for 9/23, but he filed for chapter 7 bankruptcy on 9/22, so our hearing was cancelled. I am included in the list of creditors for the bankruptcy. Is my claim exempt from the bankruptcy? Will I not be able to collect any of the money owed? Is there something that I need to file in the bankruptcy courts?

 

[mistoffolees]

What is the name of your state (only U.S. law)? PA

My ex-husband and I had a separation agreement (02/08) stating that each party was responsible for 50% of the household expenses (mortgage, taxes, insurance, utilities, repairs), regardless of living arrangements, until the property was sold. He failed to uphold that committment, and left me $8k+ out of pocket. The house finally sold (0609), and now I have been seeking repayment from him. I filed a claim in small claims court, and our original hearing was scheduled for 9/16. He asked for a continuance because he was seeking an attorney. The hearing was rescheduled for 9/23, but he filed for chapter 7 bankruptcy on 9/22, so our hearing was cancelled. I am included in the list of creditors for the bankruptcy. Is my claim exempt from the bankruptcy? Will I not be able to collect any of the money owed? Is there something that I need to file in the bankruptcy courts?

Why are you in small claims court? You should go back to the court where the separation agreement was filed.

You will probably need to deal with both the divorce court and the bankruptcy court. The way I think it should play out is that you get an enforcement order from the divorce court. You present that to the family court and argue that some of the money from sale of the house was never his in the first place and is therefore not under the jurisdiction of the bankruptcy court. With a good attorney, you may be able to win that argument and get your money ahead of the other creditors. You will need an attorney, though (you can ask for the attorney's fees from the divorce court which could also put those fees ahead of other creditors, although that would be less certain.

 

[frustrated0909]

I went to small claims court because we had processed the divorce ourselves. We were trying to keep things amicable, but obviously that didn't work. Prior to filing for divorce, I had written a separation agreement that was notarized and included with our divorce filing "separation of marital property". Again, I was trying to keep things simple by going through the small claims court, and processing it myself. I have everything well documented, and had seen an attorney who asked me "why I was just now seeking legal help...all of my documents were in order, and it should be a slam dunk". So, I decided to proceed on my own, but now it is more complicated with the bankruptcy. I just wasn't sure if I do get legal help, is it going to be worth my time and expense, or am I in a losing battle against this bankruptcy?

 

[mistoffolees]

I went to small claims court because we had processed the divorce ourselves. We were trying to keep things amicable, but obviously that didn't work. Prior to filing for divorce, I had written a separation agreement that was notarized and included with our divorce filing "separation of marital property". Again, I was trying to keep things simple by going through the small claims court, and processing it myself. I have everything well documented, and had seen an attorney who asked me "why I was just now seeking legal help...all of my documents were in order, and it should be a slam dunk". So, I decided to proceed on my own, but now it is more complicated with the bankruptcy. I just wasn't sure if I do get legal help, is it going to be worth my time and expense, or am I in a losing battle against this bankruptcy?

Back up. The divorce must have been processed in the proper court. Small Claims Court can not grant a divorce, nor would they have jurisdiction over property division issues relating to a divorce. I guess you might be able to convince a judge that it's a contract issue, but if you do that, you're going to lose - because you'd have an unsecured claim which goes to the bottom of the list of claims (all the secured creditors would be paid first and unsecured creditors only get money if there's anything left after paying secured creditors).

If, OTOH, you treat it as a divorce issue related to property division, you can make the claim that the money was never his in the first place and is therefore not subject to his creditors - and you should be able to get your money before it ever gets divvied up by the bankruptcy court.

I could be wrong, but it seems to me that your only hope of collecting is to make it a divorce property division issue and going back to the court which granted your divorce. I would strongly suggest that you see an attorney ASAP. The initial consultation won't cost you much and they can tell you your chances of recovering your $8 K. Under the best case scenario, you'd be able to recover your legal expenses, anyway.

 

[frustrated0909]

Back up. The divorce must have been processed in the proper court. Small Claims Court can not grant a divorce, nor would they have jurisdiction over property division issues relating to a divorce. I guess you might be able to convince a judge that it's a contract issue, but if you do that, you're going to lose - because you'd have an unsecured claim which goes to the bottom of the list of claims (all the secured creditors would be paid first and unsecured creditors only get money if there's anything left after paying secured creditors).

If, OTOH, you treat it as a divorce issue related to property division, you can make the claim that the money was never his in the first place and is therefore not subject to his creditors - and you should be able to get your money before it ever gets divvied up by the bankruptcy court.

I could be wrong, but it seems to me that your only hope of collecting is to make it a divorce property division issue and going back to the court which granted your divorce. I would strongly suggest that you see an attorney ASAP. The initial consultation won't cost you much and they can tell you your chances of recovering your $8 K. Under the best case scenario, you'd be able to recover your legal expenses, anyway.

We processed the divorce through Legal Zoom, and they assigned us to a court in PA, but it wasn't a local court. That's where the difficulty lies....everything was mailed in.

He stopped paying towards our house about the same time that he and his new fiance bought a new house. I was hoping to be able to place a lien against his property to make it a secured claim, but now that it is not being processed in small claims court, I will not have the opportunity to do that. I don't know that he will be able to substantiate his petition for bankruptcy....if it is denied, can I re-submit to small claims? In the meantime, he is getting married, so would I not be able to place a lien against the joint property?

Additionally, when we sold the house, there were minimal proceeds...probably why he didn't hold up his end of the committment, because he knew it wasn't going to be profitable for him.

I appreciate the advice! It has definitely educated me in helping to make my next move! I just don't want to waste a lot of time and money if it's not probable that I am going see anything in return, haha!