My ex husband is filing bankruptcy and has names me as a creditor to get out of a credit card dept that is listed in our divorce decree. How do I dispute this? What forms do I send to the court? I met with a lawyer and was told it's doable but they will charge me more than he owes me.
4 Answers from Attorneys
It is not necessary for you to do anything. Marital equalization obligations are non dischargeable. The lawyer you met with apparently doesn't have a clue. http://www.abc27talkback.com
While you are married, WI residents are both protected to a degree from creditors by the WI Marital Property law, but those protections would only apply to marital property, assuming that y9u have not opted out the Marital Property act, and assuming that your lawyer defends you aggressively. The bad news, however, is that the nonfiling spouse's property is liable to seizure by the bankruptcy trustee of the filing spouse in that event. After divorce, creditors might still try to go after the non-filing spouse's post petition wages if she is obligated on the debt, because those are no longer marital property, but a lawyer might be able to effectively defend such an attack, and/or bring your ex back into the litigation under his divorce obligations. Your lawyer could also take the bankrupt spouse back to family court for contempt in that event, since the obligations from a divorce order are nondischargeable. However, few protections in our legal system are self enforcing--they nearly always require you to protect your own legal rights by asserting them through the efforts of an experienced lawyer. If you do not protect yourself, creditors can get a default judgment against you even if they are not entitled to one, and such a judgment may still allow them to seize your property.
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If he has filed a Chapter 7 bankruptcy then bankruptcy code provision 11 USC Section 523(5) & (15) would be your defenses. The least you would want to do, though even this is not absolutely necessary if this debt truly is a domestic support obligation, is file a form B10 "Proof of Claim" in the bankruptcy. In section 5 of the claim form, you would want to designate your claim as a Domestic Support Obligation. You would want to attach the court order setting that as an obligation that he has from the divorce to the claim form. It would then be the burden of your ex to object to the claim. If this is a no-asset bankruptcy, you would not get payment out of the bankruptcy, but you would have a preserved claim to take back to the divorce court judge and seek contempt if it he does not follow thorugh with the obligation.
The tricky thing is that the bankruptcy would discharge your ex-husband's obligation to the creditor, but not to you. So, the creditor would come after you directly. You would be going to the divorce court judge to get your ex to "indemnify" you. You could also ask for attorney fees to be paid if the judge finds him in contempt. It would be safest to wait until the Chapter 7 is finished to do all this. Finally, if it is a Chapter 13 that your ex has filed, the analysis would be different, though you would still file the same claim.
The claim you need to file can be found at the http://www.uscourts.gov/forms/bankruptcy-forms/proof-claim site.
Consult with your divorce counsel or a family law attorney with a bankruptcy background in the state in which your divorce took place. There should not be any issue in enforcing your husband's obligation to you under the divorce decree, but a closer look at the documents is warranted. His discharge in bankruptcy would include his direct obligation to the creditor (the creditor can no longer pursue him), but his obligation to you under the divorce decree is not dischargeable. Often, an ex-spouse is listed in a bankruptcy petition for notice purposes, not because the bankruptcy-filing spouse expects to be relieved of responsibilities under the terms of the divorce.
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