Published Friday, February 26, 2010 @ 7:15 am

For most bankruptcy bound individuals, a discharge of all individual debts is considered the Holy Grail of any bankruptcy filing, yielding a permanent injunction that prevents creditors from collecting on debts. However, any good discussion of debt dischargeability also tackles the primary exceptions to look out for when considering any bankruptcy filing.

Exceptions to the power of a bankruptcy discharge, include:

Certain Tax Obligations
Withholding taxes are not dischargeable in bankruptcy, although you may be able to use a Chapter 13 case to pay these over time (notwithstanding any accrued penalties and interest).  Similarly, sales taxes are not dischargeable, but again, Chapter 13 can establish a payment plan for lessening the load and paying this out over the long haul.

The question of whether your income tax can be discharged ultimately depends on how old the tax debt is and when you filed the tax return.  In order to be dischargeable, your tax debt for the tax year in question must meet the following conditions: the due date for filing your tax return is at least three years ago; your tax return was filed at least two years ago; the tax assessment is at least 240 days old; your tax return was not fraudulent; and you are not guilty of tax evasion.

For example, in a 2009 bankruptcy filing:

• Taxes from 2006-2008 are not dischargeable;
• Taxes from 2004 and before are eligible for review; and
• Taxes from 2005 are potentially dischargeable if the return was filed by the debtor on or before April 15, 2006. If the return was filed under an extension, then the 2005 taxes are not eligible for the following review unless the debtor files after October 15, 2009.

Fraud and Certain Credit Usages Before Filing
Fraud is a valid creditor objection to a bankruptcy discharge. To find fraud, a creditor must prove: (1) a statement made under false pretenses; (2) a material fact; (3) designed to deceive the creditor; (4) that does in fact deceive the creditor; (5) the creditor reasonably relies on the statement; and (6) the creditor suffers actual damages resulting from the reliance.

The general rule here is this: if you’re considering bankruptcy it’s best to avoid maxing out (or in some cases simply using) consumer credit, credit cards, or loans. Bankruptcy law now demands that bankruptcy bound debtors like you do not take cash advances or purchase luxury items on credit 90-days prior to your filing bankruptcy. If you do purchase large or luxury items through these means, creditors may challenge you (and these discharging these debts) in Court if they believe that you have acted in bad faith in using credit excessively.

Domestic Obligations
Alimony, child support and spousal maintenance debts are not dischargeable in either Chapter 7 or Chapter 13 bankruptcy. Additionally, the first prong of bankruptcy, the automatic stay, does not act to stop most collection efforts for these claims. An exception to this exception comes in the second type of domestic asset splitting known as equitable distribution. While equitable distribution—a dividing of martial property as a result of dissolution of the marriage—is no longer dischargeable in a Chapter 7 bankruptcy, the same is not true in Chapter 13. Chapter 13 bankruptcy, in what is called as its “super discharge,” can aid a former spouse having trouble paying their bills to eliminate this type of burden. These issues are complex, and it is important that you speak with a bankruptcy expert if you have these types of issues.

Student Loans
In an effort to protect the education lending industry, and allow student loan money for almost anyone who wants it, Congress has made virtually every advance in connection with education non-dischargeable in bankruptcy. To that end, these loans are non-dischargeable “unless excepting such debt from discharge…would impose an undue hardship on the debtor.” While the definition of “undue hardship” is ultimately to the discretion of your bankruptcy judge, if precedent is any “judge,” this is a high hurdle to surmount. As a result, if you’re considering a bankruptcy filing simply to discharge a large student loan bill, don’t lose hope, it may just be best to wait: the tide appears to be turning in Congress to loosen this exemption as the costs of education skyrocket and more and more Americans face insurmountable educational tabs.

Because of the complexities of bankruptcy law, a qualified bankruptcy attorney is a necessary tool in your financial toolbox to help you conquer your creditors and face your fiscal  fears, yielding the right kinds of debt relief—at a low cost— for a viable and secure future.  The bankruptcy experts at the Law Offices of John T. Orcutt offer a totally FREE debt consultation and now, more than ever, it’s time to take them up on their offer. Just call toll free to 1-800-899-1414, or during the off hours, you can make your own appointment right online at www.billsbills.com. Simply click on the yellow “FREE Consultation Now” button.

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Published Monday, February 1, 2010 @ 10:48 am

The decision to file for bankruptcy is never an easy one, especially where married couples are involved. Spouses must settle issues of dishonesty, mistrust, and frustration–and that’s even before any of the complex steps of collecting necessary documents and filing papers.

But the story for insolvent couples does have a caveat: joint bankruptcy protection. Married debtors can file their cases jointly with one trustee, one filing fee, and one total case. Debtors can bring to the table their joint debts as well as debts they hold only in their name. To be a joint case, the debtors need only be legally married.  And they must be a man and a woman.

Sounds simple right?

Well, for thousands of individuals living in America today, the latter designation raises difficult questions—especially in the growing number of states that recognize same-sex marriage or its legal equivalent (“civil unions”). Yet, as the constitutionality of laws and amendments forbidding marriage equality continue to be litigated across the country, same-sex debtors seeking bankruptcy relief  face even tougher challenges.

Because it is generally accepted that the Defense of Marriage Act (“DOMA”) would preclude the filing of a joint bankruptcy petition by a same sex married couple, these folks face two very different options: (1) make two separate bankruptcy filings, or (2) pursue the right to seek bankruptcy relief as would an opposite-sex married couple. 

While the second option would be a precedent-setting endeavor, fulfilling the true meaning of marriage equality, in reality pursuing this groundbreaking goal is largely antithetical to the larger motivations of most bankruptcy bound individuals, gay or straight: getting out of debt.

In practice, a married same-sex couple will need, more than their heterosexual counterparts, the assistance of a qualified bankruptcy attorney to pull together all of their required financial information;  ensure that it is complete and their disclosures accurate; and research and prepare a case that anticipates a variety of motions attacking the joint filing. Regardless of what “party-in-interest” files the case (as defined by the Bankruptcy Code and common law), the filing will likely be challenged, even before a judge reaches such substantive issues as income, assets, liabilities, and creditors.

In this case, like others for same-sex couples seeking right-giving precedents, while the Bankruptcy Code provides one standard, constitutional arguments will inevitably reveal others that need to be briefed and raised.  Same-sex couples must expect that any decision in their favor will be appealed, perhaps more than once to a US District Court, a Bankruptcy Appellate Panel, a Circuit Court of Appeals, or maybe even the Supreme Court of the United States.  For debtors, this type legal wrangling adds ,ore time, more fees and inevitably more stress to what is undoubtedly an already nerve-racking situation.

As a result, for a married same-sex couple facing the need to file bankruptcy, the next steps can mark a tough decision: file singly or fight the system; seek your family’s financial security or a denigrated group’s fundamental rights; moving forward for your family or moving your family forward.  In the end, changing the current state of the law will take either an act of Congress or one or more very brave and very patient married same-sex couples who find themselves drowning in debt and who–in spite of these debts—also feel empowered to fight the good fight.

The state of marriage equality is not yet where it should be in the United States, and this seriously affects the legal rights of same-sex families.  But until the law changes, same-sex couples need expertise in the handling of their cases.

If you live in North Carolina where same-sex marriage is not legal, but are still considering bankruptcy, the bankruptcy experts at the Law Offices of John T. Orcutt offer a totally FREE debt consultation and now, more than ever, it’s time to take them up on their offer. Just call toll free to 1-800-899-1414, or during the off hours, you can make your own appointment right online at www.billsbills.com. Simply click on the yellow “FREE Consultation Now” button.

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Published Saturday, January 30, 2010 @ 3:37 pm

This unrelenting economic downturn has been rough on all Americans—whether they be single, dating, engaged, married or widowed. But, as anyone who has ever been married already knows: money can be the main cause of many a marriage’s marital strife. As a result, in this especially difficult economic climate—full of job insecurity, rising mortgage costs, health care uncertainties and other mounting money woes—times have never been tougher for couples pushed to the brink of bankruptcy.  Many are left to wonder, who or what can help?

Yet, no matter how tough the economic tide, laying blame to your spouse for your family’s financial problems can be a dead end road that often leads to, at best, long-term distrust, and, at worst, the dissolution of the entire marriage. As unfortunate as it is that one or the other spouse may be the cause of the couple’s insolvency, fortunately, the power of the Bankruptcy Code can provide hard-hit couples with a clean slate by which to not only discharge their shared debt but also provide a unique opportunity to learn valuable lessons in budgeting and other healthy financial behaviors, together. These lessons include:

Bankruptcy Ends the Blame
Unlike a disgruntled spouse, bankruptcy does not blame either party or search for a decisive reason behind a debtor’s insolvency.  Instead, a bankruptcy filing means an accounting of all relevant debts and responsive solutions to how to discharge them. As a result, this process takes the pressure out of solving previously insurmountable problems with debt and creditor claims, granting a clean slate by which one spouse can be forgiven, another can forget, and both can move forward into a financially viable future.

Bankruptcy Ends Arguments at Their Source
As anyone who is married can attest, marriage and debt can make for a very volatile mix.  Bankruptcy removes divisive topics like debt from most marital arguments—discharging creditor claims and giving the previously cash-strapped couple the chance to begin to save for their next best steps.

Bankruptcy Protects Marital Assets
Bankruptcy shields a married couple’s most valuable assets and precious income using the power of an “automatic stay.”  This court-mandated suspension of creditor claims can shield the marriage by protecting the innocent spouse from the financial indiscretions of the other—preventing wage garnishment, creditor lawsuits, and unwieldy interest fees.   

Bankruptcy Can Sooth Marital Stress
Finally, in addition to wiping away many of the most pressing debts affecting many couples these days—and thereby relieving some of the fodder for arguments and discord—being honest with your spouse, or each other, about a dire financial situation, will provide a healthy framework for your relationship. This honest dialogue sets a perfect stage for a safe financial future and provides a strong marital precedent to overcome other challenges that both husband and wife may face in the weeks, months, and years ahead.

If you are considering filing for bankruptcy to strengthen your union, as well as your finances, knowing a qualified bankruptcy attorney can also help you make the right spending decisions, yielding the right kinds of support, information and insights—at a low cost— for a fiscally viable and secure portfolio.  The bankruptcy experts at the Law Offices of John T. Orcutt offer a totally FREE debt consultation and now, more than ever, it’s time to take them up on their offer. Just call toll free to 1-800-899-1414, or during the off hours, you can make your own appointment right online at www.billsbills.com. Simply click on the yellow “FREE Consultation Now” button.

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Published Wednesday, January 20, 2010 @ 11:34 am

In this special series, entitled “Bad Ideas for the Bankruptcy Bound,” we’ll introduce what to avoid when bankruptcy is your next, best step.

Love may move mountains,
but money can crumble the strongest marriage.
– Ron, Lieber, The New York Times

Everyone who’s married knows: money can be a primary cause of marital strife. As a result, in this especially difficult economic climate—full of job insecurity, rising mortgage costs, health care uncertainties and other mounting money woes—many debtors who have accumulated all kinds of debt without the knowledge of their spouse are sometimes tempted to file for bankruptcy “secretly” and avoid sharing the financial “bad news” with their spouse.

Regardless of the fiscal reason, this path can lead to losing it all with your better half. While one petitioning spouse doesn’t mean the other has to file for bankruptcy also, it’s assuredly never a good idea to hide a filing from your husband or wife. Here’s why:

Disclosure of Your Debts is Inevitable
While married people like you have a legal right to file for bankruptcy by your lonesome, what you don’t have readily available is any way to keep the news of your bankruptcy filing from your spouse. When you stop paying your creditors in anticipation of your bankruptcy filing, inevitably these same creditors will begin calling and writing your home—the same space you share with your unknowing spouse.  Remember, the bad news of your insolvency can come from you or them, with a bit less sensitivity from the latter.

You’ll Need Your Spouse’s Support
Married folks who file for bankruptcy must provide information regarding their spouse’s pay, last year’s tax returns, proof of retirement and an array of other information that might require your better half’s information and input.  Keep in mind, your requests for this information will ultimately raise your spouse’s suspicions and the likelihood of your spouse finding out—one way or another.

Joint Accounts Automatically Get Your Spouse Involved
Filing for bankruptcy means that if your spouse’s name appears on any of your debts—such as joint credit cards, mortgages, or the like—they’ll find out the hard way when creditors pursue them for an alternative way to get paid.  In addition, if your spouse is using one of the forms of credit that will be included in the bankruptcy filing, you’ll need to tell him or her to stop using this credit before you file—another reason your spouse will be alerted to your insolvency.

Don’t Risk More Stress in Insolvency
Obviously, hiding your debts from your spouse is dishonest. Hiding your bankruptcy from your spouse, as you’ve seen, is almost impossible.  Both non-disclosures will add unnecessary stress and strife to your relationships. And amid these harsh economic times, life can be tough enough without all of this interpersonal withholding.  The first step to a fresh financial start together, is being honest about your bankruptcy with your spouse. Don’t forget, there is no more ruinous a financial move than a divorce and no greater road to divorce than fiscal dishonesty.

Knowing a qualified bankruptcy attorney can also help lessen the marital stress of bankruptcy, yielding the right kinds of support, information and insights—at a low cost— for a financially viable and secure future.  A good bankruptcy attorney can also dispel the many myths and stigmas of bankruptcy, offering truthful information about this powerful form of debt elimination. The bankruptcy experts at the Law Offices of John T. Orcutt offer a totally FREE debt consultation and now, more than ever, it’s time to take them up on their offer. Just call toll free to 1-800-899-1414, or during the off hours, you can make your own appointment right online at www.billsbills.com. Simply click on the yellow “FREE Consultation Now” button.

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Published Friday, December 4, 2009 @ 12:15 pm

We’ve all heard that money problems are the leading cause of marital problems. If you’re reading this article, chances are you’re experiencing both problems. In this economy, with unemployment, foreclosures, and debt at record highs, you’d be hard-pressed to find couples who don’t fight about money!

Financial problems can wreak havoc on your marriage, leading to constant arguing, blame-laying, and even divorce. In fact, when the economy suffers, couples are far more likely to consider divorce as a solution to their problems.

Some couples might think this solution sounds reasonable, even tempting. No more fighting about—you guessed it—money. No more seething tension fueled by bills, debt, and money worries. No more arguments and accusations over who spends more, who earns less, or who should pay the bills.

But is divorce necessarily the solution when it’s your debt that’s to blame?

What if you could eliminate your debts and save the personal property you and your spouse have worked so hard to accumulate? What if you could stop fighting about money?

What if you filed bankruptcy?

Would the fighting end if you and your spouse got a clean slate? A fresh start? What if you got the chance to re-establish your financial goals, make new plans, and move forward with your life together? Imagine the marital peace that could result from financial peace of mind!

You do have options other than divorce. An experienced bankruptcy attorney can help you salvage your marriage and rebuild your life by reducing, restructuring, or eliminating the debt that’s at the center of your marriage problems. For those who qualify, a Chapter 7 bankruptcy filing can erase your credit card debt, your personal loans, and your medical bills. It can erase the cause of most of your marital problems!

Whether your financial problems are due to job loss, the downturn in the stock market, an increase in your adjustable rate mortgage, medical bills, or rising credit card rates and fees, you don’t have to let your financial problems ruin your marriage! Financial stress can quickly build to the breaking point. But if you could save your marriage, wouldn’t you?

Save your marriage. Save your home, your car, your property, your family. Call the Law Offices of John T. Orcutt at 1-800-899-1414 or visit www.billsbills.com.

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Published Sunday, November 15, 2009 @ 12:37 pm

Are you a married couple, but only one of you earns income and holds assets? Or maybe only one of you has acquired debt during your marriage? If you’re married and considering a bankruptcy, you might be wondering whether you and your spouse both have to file bankruptcy.

The answer: while you and your spouse do not both have to file bankruptcy, usually, if a bankruptcy is necessary for one spouse, both spouses will end up filing.

If, for instance, both you and your spouse are liable for a debt and only one of you files under Chapter 7, the creditor may later attempt to collect the debt from the non-filing spouse, even if he or she has no income or assets! In other words, the creditor will simply demand payment for the entire debt from the spouse who didn’t file. So in this case it makes sense for you both to file.

If, however, only one of you has incurred debt during your marriage, only the spouse with the debt needs to file bankruptcy. In states like North Carolina, which is not a “community” property” state, even if you are married—if you did not sign for the debt, you do not owe the debt, and you do not necessarily need to file bankruptcy.

What if you just got married and most of the debt belongs to just one of you? As long as you didn’t sign for your spouse’s premarital debt, only the spouse with the debt has to file bankruptcy.

And what about a Chapter 13? If you both qualify for a Chapter 13 and if you are both liable for any significant debts then you should file jointly under Chapter 13, even if only one of you has income!

Whether you’re considering Chapter 7 or Chapter 13—if you’re married and considering bankruptcy then both of you should consult with one of the attorneys at the Law Offices of John T. Orcutt to ensure that both of your best interests are carried out. Visit us at www.billsbills.com or call us at 1-800-899-1414.

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Published Monday, September 21, 2009 @ 1:49 pm

Many of us now come into marriage with some debts in tow. Some of us also arrive owning some of our own property. Once married, we incur new debts, jointly or separately; for example, one spouse may finance a car under his name, while both spouses may need to list their income together when they borrow for a new home. In addition, you may have credit cards and checking accounts in your own name, and some held jointly.  Sometimes one spouse will have the legal responsibility for credit card debt, but the other spouse, as an authorized user of the account, has the ability to add to it. A spouse may not have the responsibility for a debt, but may contribute to payment from her income. And then there are the difference in state law, which also adds layers: in the nine community property states, both partners own all property equally, while in the non-community property states (or “equitable distribution” states, such as North Carolina), each spouse owns all of his own property and one half of the property held jointly.

As you can see, marriage can definitely complicate matters when it comes to property and debt! For many couples facing an unmanageable amount of debt together, these different factors may complicate the decision to file for bankruptcy However, there’s no need for alarm. If your marriage is suffering from the pressures of debt, bankruptcy can offer the relief to allow your family to focus on the things that really matter. An experienced bankruptcy attorney will be able to assess your situation and advice you on the best strategy for taking care of your debts while saving your property. Based on the kinds of debt and property your couple has, he will be able to help you choose whether to file separately or jointly. And in some situations, he may advise one partner to file and the other partner not to. Let’s look at some of the factors he’ll weigh in making his determination:

If you file together, all of your separately held debts, as well as all of the jointly held debts acquired during the marriage will be discharged. Filing together is also cheaper than filing two separate bankruptcies, and often times the financial troubles of one spouse are tied to those of the other. If only one spouse files, jointly held debts will be discharged only for the spouse who files; the other spouse will still be responsible for the debt.

However, if one spouse holds most of the troublesome debt in her own name, it may make sense for her to file alone. This is especially true if the non-filing spouse has better credit. Preserving one party’s credit can help the filing spouse recover from bankruptcy faster. The non-filing spouse can co-sign on future accounts, allowing the filing spouse a better chance to rebuild post-bankruptcy.

Don’t let these nuances deter you from the most important point: no matter what kind of debt you have and what kind of property you hold, bankruptcy can offer a life-changing opportunity for you and your spouse to put unmanageable debt behind you. Because you want to approach your filing strategically, it’s an excellent idea to contact an experienced bankruptcy attorney to help you and your spouse make the right choice.

In North Carolina, contact the Law Offices of John T. Orcutt at 1-800-899-1414, or visit www.billsbills.com to complete our free and confidential debt questionnaire.

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Published Saturday, September 19, 2009 @ 10:11 am

A thoughtful, measured strategy for your bankruptcy can help you in a number of ways when a divorce seems inevitable or is already underway. A good plan can help ease tension between yourself and your spouse, for example, by reducing fights about who is responsible for this or that bill. Not only is this expensive, aggravating, and likely to sour an already acrimonious process, it may be completely unnecessary. You may find that bankruptcy can get rid of those bills altogether! Thus, there will be no need to assign a bad guy.

If you have already finalized the divorce, bankruptcy is often the best way of getting back on track financially. Chances are, you will emerge from your divorce with a significant amount of secured and unsecured debt. Bankruptcy allows you to let go of those items you can no longer afford with one income. If you simply allow the car to be repossessed, or the mortgage to be foreclosed, you will still be responsible for the deficiency balances after the car or home is sold. This is the worst possible scenario- not only have you lost the car or home, but you’re still on the hook for the underlying debt. Surrendering the home or car in a bankruptcy shields you from any remaining personal liability, and frees you to transition to a new lifestyle.

If you’re still in the preliminary stages of your separation, it may be tempting to postpone thinking about bankruptcy until after the divorce is totally settled; why deal with two stressful legal procedures at once? The answer is that with a good bankruptcy attorney and a good strategy in place, you can make a bankruptcy work for you and your future ex. Even if you and your soon to be ex-spouse disagree on every other issue, try to agree on bankruptcy as the best way to wrap up and dissolve the marital debt. If you are legally separated but not divorced, you can file a joint Chapter 7 petition, receiving your discharge in a matter of months. This can free you to focus on the truly important issues of your divorce, such as custody and visitation. Of course, in some instances, filing and completing the divorce before filing for bankruptcy is the best option, and this is why consulting with an experienced bankruptcy attorney early in the divorce process is important. Only an attorney can assess your unique situation to determine the best strategy.

Both bankruptcy and divorce can be stressful processes, so you should always exercise your power to save yourself aggravation where you can. Don’t make these life events more difficult than they have to be, and remember that only you can take control of your financial future.

The attorneys at the Law Offices of John T. Orcutt have years of experience helping families deal with the financial challenges of a divorce. Call us today for a free initial consultation. 1-800-899-1414.

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Published Friday, August 7, 2009 @ 8:44 am

This may come as a surprise to some, and huge relief to others: bankruptcy can be filed by one spouse without the other. The big question is: SHOULD you file without your spouse? Like most aspects of bankruptcy, the answer will depend on your particular situation.

Resorting to declaring bankruptcy can be a source of nervousness, fear, and you may be genuinely concerned about keeping your filing private. Many people contemplating filing want to be reassured that their bankruptcy won’t be published in the newspaper, that their employer won’t have to know, that in-laws won’t be informed, their kids don’t have to know, their kids’ teachers, their pet groomer, their neighbors … etc. But once a person finds out that it is possible to file without joining his or her spouse, what if they wish to keep even their spouse completely in the dark?

While, theoretically it might be possible to completely hide a bankruptcy from your non-filing spouse, it probably isn’t a good idea ethically, or even as a practical matter. What will the spouse think when mail starts arriving at the house from the United States Bankruptcy Court? Or when you have to ask for his or her past pay stubs? Or when you are wandering around with a pad and pen listing the contents of the house?

And then there are the financial concerns. While a bankruptcy filing by one spouse does not automatically bring the other spouse into bankruptcy, neither does the bankruptcy of a spouse give the non filing spouse the full protection of the automatic stay or the bankruptcy discharge for debts on which they may be joint debtors. In that case, the bankruptcy of one spouse does not relieve the other of paying the debt. Upon a bankruptcy, the creditor may look to the other spouse for payment.

Generally, marriage alone doesn’t make both spouses personally liable for a debt. Only those who signed loan documents or credit applications are liable for the debt. But if you have any joint debts, your bankruptcy will likely be noted in some way on your spouse’s credit report even though they weren’t made a party to the bankruptcy. Filing a joint tax return makes both spouses liable for the total of the tax due. And if you and your spouse own property together, that property may be included in the bankruptcy estate and be made available to pay creditors to whom you owe a joint debt.

If you still think it would be better to exclude your spouse from a bankruptcy filing, know that your bankruptcy filing will have some effect on the credit worthiness of your spouse in the future if they apply jointly with you for a loan someday. The lender will often consider both of your credit ratings in making a lending decision.

Financial implications aside, the circumstances leading to the bankruptcy are often indicative of far more serious issues happening within the relationship such as loss of employment, illnesses, emotional problems, or addiction. Failing to talk about the real issues and hiding a bankruptcy doesn’t help the bigger issue–whatever caused the financial difficulties is better worked on out in the open, together with your spouse. If the problems in your marriage have become so large that you have or are considering divorce, it is still wise to reveal your bankruptcy intentions to your spouse and your respective family attorneys, since it can have implications on how property and debts will be allocated in divorce proceedings.

A bankruptcy attorney can point you towards a path of financial stability but ultimately you are the one who must walk on that path….and it is usually better to have the full support of your loved ones. Before taking on the entire burden of filing bankruptcy alone, talk with your attorney, and, more importantly, your spouse.

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Published Monday, August 3, 2009 @ 10:45 pm

Marriage is a partnership, and it works much better with each partner pulling his or her own weight. To avoid problems down the line, it’s a good idea for each partner to establish and maintain a separate credit identity. As a matter of fact, that is how the law will see it in all but the nine community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.) This means that if your spouse takes on a financial responsibility without you, you will not be legally liable for it, and vice versa. But it also means that good financial behavior on the part of your spouse won’t necessarily reflect on your credit report, even if you share in the actual payments. Here are a few tips to help you create and maintain your personal credit identity, apart from your spouse’s.

• Keep separate checking accounts. When people get married, they often choose to combine their checking accounts into one account both can access. This is certainly easier, logistically speaking, for maintaining a household. However, this exposes you to trouble if your spouse should turn out to have less than great habits with ATM withdrawals and checks. A better idea is to keep separate accounts, and also open a joint account for household use.

• Don’t take out joint credit card accounts or personal loans. This is another step many people take when they get married, but it’s a bad idea for some of the same reasons separate checking accounts are a bad idea. Besides, remember that in a bankruptcy filing, credit card debt can be fully discharged, and with separate credit card accounts, one spouse can file for bankruptcy without involving the other. In states which recognize tenancy by the entirety or similar forms of marital ownership, a judgment obtained by a creditor against one spouse will not become a lien against jointly owned property. However, if the credit card is a joint one, a judgment will attach to the property, possibly enabling the creditor to sell your home by sheriff’s execution sale! Talk to your bankruptcy attorney to determine how your spouse’s assets will be affected during bankruptcy.

• Understand how creditors are permitted to consider your spouse’s credit. When applying for credit in the non-community property states, a lender is not allowed to make a determination based on your marital status. Thus, he cannot ask to see your spouse’s information, unless her income will be  a basis for repayment of the debt.

• Make sure joint accounts with good records are reported on both credit reports. If you’ve been building good credit together on joint accounts like your mortgage or car loan, you want to make sure that the information is being reported under both names. If you find out it isn’t, you can write to the creditor and request that they report to the credit bureaus about both of you.

With tightening credit markets, having a separate credit identity is crucial to maintaining your family’s financial viability. If you or your spouse are overwhelmed with debt, talk to a bankruptcy attorney today to find out how a properly planned bankruptcy can help your marriage and your finances.

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Published Monday, May 18, 2009 @ 12:47 pm

One of the big myths in the minds of people who are in debt and happen to be married is that bankruptcy leads to divorce. Yes, along with medical bills and job loss, divorce can be considered a leading contributor to bankruptcy, since it can put one or both ex-partners in a significantly more fragile economic position, and ultimately lead to a perilous situation that can be remedied no other way. That situation can happen after a divorce, but the idea that an otherwise happily married couple that files bankruptcy will inevitably land in divorce court is just false.

There is absolutely no doubt that financial problems put stress on a marriage. Well, we already know that financial troubles can have a negative effect on just about every other aspect of a person’s life. You may be experiencing your own personal version of that fundamental truth right now. And just like your credit, reputation, self esteem, and other personal relationships, you could one day wake up to find your marriage in trouble or on the verge of being ended if the financial situation isn’t improved quickly and effectively.

We must realize, when this happens, that filing bankruptcy isn’t the problem – it’s the stress of not being able to pay the bills that’s the problem. It’s the uncertain future, the fear of losing a home, it’s the debt collector harassment, and other emotional financial baggage issues that cause, or contribute to the marital discord, not the bankruptcy. In fact, in otherwise healthy marriages, bankruptcy almost always helps a marriage rather than causing divorce, because it’s designed to stop stress and help people get their finances organized.

Bankruptcy can reduce the stress, buy some time, stop the harassment and uncertainty, and help couples develop a plan to restore their financial stability and progress. Having a plan helps a married couple work as a team to overcome their obstacles. It will stop the cycle of blame and guilt, and help your family grow in a positive direction toward financial freedom.

Once the burden of indecision about the financial situation is resolved, couples often return to supporting each other and move forward with their lives together. Bankruptcy is a legal process, and it isn’t always easy to make the decision to file or to experience. Talking with a bankruptcy attorney can help you decide if it’s the right decision for you. And when it comes to marital conflict caused by financial stress, bankruptcy can be the best remedy, because what it’s really about is moving forward in life.

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Published Saturday, April 18, 2009 @ 6:16 pm

How many people enter into marriage these days totally debt-free? Probably fewer than you would think. Debt might have been accrued from the often inevitable student loan, through inexperienced or irresponsible spending, or even by footing the bill for a once-in-a-lifetime wedding and honeymoon extravaganza. For those taking the plunge for a second or third time, the debts could come from a myriad of sources. Regardless of where it comes from, premarital debt is going to be a consideration for couples contemplating marriage more often than not.

The fact is, only a very fortunate few couples have the luxury of starting out their new life together debt-free. If you’re one of them, count your blessings! If not, well, what to do?

Well, first, don’t ignore the fact that you or your fiancee has premarital debts. This could lead to serious consequences during your marriage. But don’t call off the wedding just yet.

Second, you need to get some facts about how this debt will affect you. Will you become individually legally liable for his or her pre-marital debt after the wedding?

A third consideration, which most people don’t want to consider, but wish they had after it’s too late, is how to protect yourself from becoming responsible for a spouse’s pre-marital debts in the sad event of a divorce. And, what will happen to those premarital debts in the event that bankruptcy becomes inevitable?

These are questions that an attorney, specifically a bankruptcy attorney, can answer for you, based on your specific circumstances. As a general rule, however, debts incurred wholly by one partner prior to the marriage will belong to that partner individually during the marriage and are considered as such in the event of a divorce. The same holds true for most debts incurred during the course of the marriage (in States like North Carolina).

The biggest exception is where you live in a State governed by “community property” laws. California, for example. Generally speaking, in community property States, debts incurred during the marriage are deemed owed by both spouses, regardless of who signed on the dotted line.

Don’t live in a “community property” State? Good! Then, in most situations, even if you are married…”If you did not sign it, you do not owe it”.

So, unless you signed on your spouse’s premarital debt, or signed on the re-finance of that debt during the marriage, you shouldn’t worry that you will be required to shoulder your fiancee’s pre-marital debt.

However, such debt could have dire implications upon the health of your marriage. Shaky finances can put tremendous stress on a marriage and this stress often is a major reason that many marriages fail.

If, prior to marriage, one partner is overwhelmed by debt, you should talk to a bankruptcy attorney to help you decide if filing for bankruptcy prior to the marriage will allow that partner to move forward and reconstruct his or her financial health. This step will bring long-term benefits to the union, and also facilitate the marriage to get started out on solid footing.

The decision to get married should be a joyful and momentous event in your life. Don’t let these moments be overshadowed by your or your fiancee’s debt burden. And don’t feel like your only option is to postpone the wedding until you are both completely debt-free. Often that just isn’t realistic. If you are concerned about the affect of debt on your future spouse or your marriage in general, please contact a skilled bankruptcy attorney who can help guide you during this crucial time.

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