Kconn

Being sued CC debt. Told my husband makes too much to claim

Recommended Posts

I was told during a free consult with a debt atty that even though only MY name is on the credit cards (x3) and am currently being sued by Amex. That I cannot claim bankruptcy because my husband makes too much.

I have no job, credit cards are in my name only, car is in my name and he never used any of the cards. I am currently responding to my summons, but in all honesty the debt is mine, I just have no way to pay it back, so I was hoping bankruptcy would be my answer.

Is this Georgia atty correct?

 

Share this post


Link to post
Share on other sites

Did you acquire the cards while you were married or were purchases on the cards made to benefit the martial community?  If so, they are presumed to be martial debts, regardless of whose name is on the cards. 

  • Like 1

Share this post


Link to post
Share on other sites

Yes the cards were acquired during marriage and one of the cards paid for daycare fees, so yes. But thats assuming that,  "for the marital community" includes that. But that was just a small part of the 30 grand. How is it determined what  "for the marital community" charges are.

Share this post


Link to post
Share on other sites
30 minutes ago, Harry Seaward said:

Did you acquire the cards while you were married or were purchases on the cards made to benefit the martial community?  If so, they are presumed to be martial debts, regardless of whose name is on the cards. 

Yes the cards were acquired during marriage and one of the cards paid for daycare fees, so yes. But thats assuming that,  "for the marital community" includes that. But that was just a small part of the 30 grand. How is it determined what  "for the marital community" charges are.

Share this post


Link to post
Share on other sites

You do qualify for bk.  It just may not be a Chapter 7.

Whose name is on the card or what the card was used for IS NOT the issue.

Your husband's income supports the household.  His income IS included in determining if you are above or below median income for a family of your size in your jurisdiction.  If you are above median you must "qualify" for Chapter 7 by passing the "means test".  If you do not qualify and you need bk you would be forced into a 5 year Chapter 13.

Did the attorney you consulted with take the time to complete the "means test"?  If not, try another attorney to see if you can "qualify" for a Chapter 7.

Des.

  • Like 2

Share this post


Link to post
Share on other sites
4 hours ago, Kconn said:

Yes the cards were acquired during marriage and one of the cards paid for daycare fees, so yes. But thats assuming that,  "for the marital community" includes that. But that was just a small part of the 30 grand. How is it determined what  "for the marital community" charges are.

Because the debts were incurred during the marriage, they aren't going to break down what percentage of the debt was used for this or that. Once the debts were co-mingldmed with household funds, it is a community debt. "Benefit to the marital community" doesn't stop at what the cards were used for. Even if they weren't ever directly used to buy groceries or pay for household utilities, for example, if card balances were paid from a bank account both spouses contributed to, it's going to be considered a community debt and your husband's income is subsequently going to be factored into the bankruptcy means test calculation.

If it was as simple as "only my name is on the cards", every married couple with a non-working spouse could put credit cards into the name of that spouse and skip out on $100,000 in debt when there is $5m in annual household income. 

If you want to claim this is a separate debt, you will have to prove charges were made only for your own benefit and payments made toward the credit card balances came exclusively from your separate income or other independent funds  (wages/earnings that went into your sole and separate bank account or an inheritance of yours that your husband never had rights to, for example).

  • Like 1

Share this post


Link to post
Share on other sites

Actually Harry, you want to be careful here. Not all states are Community Property states like Arizona. The community property rules may not apply in Georgia.

Share this post


Link to post
Share on other sites
10 hours ago, despritfreya said:

You do qualify for bk.  It just may not be a Chapter 7.

Whose name is on the card or what the card was used for IS NOT the issue.

Your husband's income supports the household.  His income IS included in determining if you are above or below median income for a family of your size in your jurisdiction.  If you are above median you must "qualify" for Chapter 7 by passing the "means test".  If you do not qualify and you need bk you would be forced into a 5 year Chapter 13.

Did the attorney you consulted with take the time to complete the "means test"?  If not, try another attorney to see if you can "qualify" for a Chapter 7.

Des.

Thank you, no I never heard of a means test before looking into it myself. My husband makes more than a median income so i'll look into the means trst first.

Share this post


Link to post
Share on other sites
8 hours ago, Harry Seaward said:

Because the debts were incurred during the marriage, they aren't going to break down what percentage of the debt was used for this or that. Once the debts were co-mingldmed with household funds, it is a community debt. "Benefit to the marital community" doesn't stop at what the cards were used for. Even if they weren't ever directly used to buy groceries or pay for household utilities, for example, if card balances were paid from a bank account both spouses contributed to, it's going to be considered a community debt and your husband's income is subsequently going to be factored into the bankruptcy means test calculation.

If it was as simple as "only my name is on the cards", every married couple with a non-working spouse could put credit cards into the name of that spouse and skip out on $100,000 in debt when there is $5m in annual household income. 

If you want to claim this is a separate debt, you will have to prove charges were made only for your own benefit and payments made toward the credit card balances came exclusively from your separate income or other independent funds  (wages/earnings that went into your sole and separate bank account or an inheritance of yours that your husband never had rights to, for example).

I see what you are saying. I dont believe Georgia is a community property state. That being said I was employed with direct deposit into own bank acct, which cc payments were made from. I guess what i'm hearing from everyone is try the means test and that should determine it.

Share this post


Link to post
Share on other sites
2 hours ago, Kconn said:

Thank you, no I never heard of a means test before looking into it myself. My husband makes more than a median income so i'll look into the means trst first.

So started the means test and first question! It is asking for past 6 mo income. It also asks how I am filing taxes, but doesnt state last year taxes or this years. It will be different this year because of my debt. Last year was married filing jointly. This year will be married filing seperately. Which one should I use?

Thank you everyone for your input.

Share this post


Link to post
Share on other sites
9 hours ago, WhoCares1000 said:

Actually Harry, you want to be careful here. Not all states are Community Property states like Arizona. The community property rules may not apply in Georgia.

You're right.  I went off on a tangent when I should have stuck to the original question.

The answer is one spouse can file bankruptcy without the other, but total household income is calculated when determining Ch.7 BK eligibility.

6 hours ago, Kconn said:

So started the means test and first question! It is asking for past 6 mo income. It also asks how I am filing taxes, but doesnt state last year taxes or this years. It will be different this year because of my debt. Last year was married filing jointly. This year will be married filing seperately. Which one should I use?

Thank you everyone for your input.

Tax filing status doesn't matter for the means test.  You are only comparing your total household income to the Georgia median income for a household of your size.

Share this post


Link to post
Share on other sites
6 hours ago, Kconn said:

So started the means test and first question! It is asking for past 6 mo income. It also asks how I am filing taxes, but doesnt state last year taxes or this years. It will be different this year because of my debt. Last year was married filing jointly. This year will be married filing seperately. Which one should I use?

 

The form is not asking how you file taxes.

Part one of the form is asking if you are married and whether or not you are filing a joint petition. 

Since you will be filing without your spouse you mark "Married and spouse NOT filing jointly".  You then mark "Living in same household and not legally separated".  Then follow the instructions and fill out both columns A and B to calculate monthly income (which is the gross income for the 6 full months prior to the month you file divided by 6).

Des.

  • Like 1

Share this post


Link to post
Share on other sites
15 minutes ago, despritfreya said:

The form is not asking how you file taxes.

Part one of the form is asking if you are married and whether or not you are filing a joint petition. 

Since you will be filing without your spouse you mark "Married and spouse NOT filing jointly".  You then mark "Living in same household and not legally separated".  Then follow the instructions and fill out both columns A and B to calculate monthly income (which is the gross income for the 6 full months prior to the month you file divided by 6).

Des.

Thank you so much des.

I finished it and it states that I do qualify for chap 7 so I'm going to talk to an atty. It was intense and  I'm absolutely sure I messed it up somehow. I am also drafting my letter to the summons I received but am unsure of wether to deny or not. I could disagree with the amount based solely on the fact that what I owe and what they are asking is different based on interest and fees they have charged, but I am afraid anything else I deny is going to be asked to be backed up with reasons I just don't have.

Can I honestly deny this summons in my answer and not cause myself more damage?

Is the reason to deny just so I can settle?

And is not denying admitting that I will pay everything asked of me?

I read that I have basically 3 answers, agree, deny, or that I am unknowledgeable, (which doesn't really apply in my case.)

So if I can't claim chap7 and I deny, will that be defaulted to an automatic loss by the judge because os dishonesty?

Thanks again

Share this post


Link to post
Share on other sites

You can certainly deny but this being AMEX, you probably will not get far. They do have the records and they will follow you into arbitration. If your husband has some funds, you could consider settling with that money. Otherwise, they deny would only buy a little time because they will send you their records and then file a MSJ. In the meantime, you should get your name off of any bank accounts that are in both your names. That will stop any levying of bank accounts.

  • Like 1

Share this post


Link to post
Share on other sites
1 minute ago, WhoCares1000 said:

You can certainly deny but this being AMEX, you probably will not get far. They do have the records and they will follow you into BK. If your husband has some funds, you could consider settling with that money. Otherwise, they deny would only buy a little time because they will send you their records and then file a MSJ. In the meantime, you should get your name off of any bank accounts that are in both your names. That will stop any levying of bank accounts.

Thank you for your help there isn't really anything they've done incorrectly to catch them on. I'll go see the atty and file my letter and see what happens!

 

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.