Not going down without a fight (a lesson in creditor's rights)

*DISCLAIMER: This post is not intended to be legal advice. Please seek out the assistance of qualified counsel if you need assistance in this area. Or figure it out yourself and do it pro se.... but remember what they say, "He who is always his own lawyer will often have a fool for his client."

One of my many Adventures in Divorce has been the experience of serving as my own legal counsel. I initially filed my petition for divorce pro se, though I eventually hired an attorney once The Ex started clownin' and doing ish like sending me interrogatories and requesting custody evaluations (which cost upwards of $15,000).... even after I hired a divorce attorney, I still played a major role in drafting my settlement agreement, which is very much like what I'd imagine drafting your own obituary would be like...... Then I had the experience of filing my own contempt motion when this fool refused to pay for all the things he agreed to pay for in the divorce settlement. Please keep in mind, although I am an attorney, I am not a family law attorney, nor am I a litigator..... I'm a business attorney, a paper pusher, the chick that drafts the contracts that get signed and put away in an old file until the shit hits the fan and clients have to pull it out to see what everyone is supposed to be doing and isn't. There is a very large and distinct difference there.

So my latest hat that I've had to don in the legal arena has been that of a bankruptcy/creditor's rights attorney, with me as the creditor. Although The Ex had signed our divorce decree and agreed to be responsible for certain debts (an extremely MINOR portion of the debt at that) he had no intention of ever paying it and had already expressed that he was just going to file bankruptcy and leave me stuck with EVERYTHING. Yea, he's a real man's man. And for once in his life, he was true to his word and filed bankruptcy, attempting to leave me with 2 credit cards, all of a second mortgage, and the deficiency on his car that he couldn't pay for and got repossessed (and which is now wrapped into MY car loan because of cross-collateralization, meaning my car will NOT be paid off next year as anticipated..... I just gotta *woo sah* on that one). Fuck. That. So, being the incredibly smart cookie I am, I did a little research, and this is what I found:

"11 U.S.C. § 523(a)(15), was changed to state that any obligation 'to a spouse,former spouse, or child of the debtor and not of the kind described in paragraph(5) [“domestic support obligations”], that is incurred by the debtor in thecourse of a divorce or separation or in connection with a separation agreement,divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a government unit is not dischargeable.' This is a very dramatic change which, in effect, states that any obligations coming from a dissolution judgment or separation agreement are not dischargeable in bankruptcy."

I told this fool this before he ever filed for bankruptcy -- even e-mailed him the relevant sections of the bankruptcy code, effectively doing the work of his attorney for him-- but still he included me as a creditor to be discharged just like the rest of the lot. If I haven't already made this abundantly clear by now, The Ex isn't very bright, and part of his not-very-brightness results in him consistently underestimating my intelligence and tenacity. I wasn't going to take this shyt lying down and I let him know this.

But...... I had no effing CLUE about anything to do with bankruptcy or creditors rights. I had about 3 months to figure it out, though. I asked people at work, and nobody knew. I asked a friend who is a creditors rights attorney at a Big Firm, and he didn't know (he didn't deal with consumer bankruptcies). I scoured the net, but all I could find was information for debtors wanting to file bankruptcy; nothing for creditors like me. As the May 4th deadline approached, panic started to set in.... I was going to get stuck with about $17,000 worth of debt that he was supposed to be responsible for. I didn't want to hire an attorney and pay him/her $1000 to possible still get nothing..... after all, I was only trying to get a determination that my debt was no dischargeable, it would not have been an order to pay..... that would come with the contempt orders. But finally, on May 3rd I found it.... some convoluted instructions and forms on how to file an adversary proceeding on the court website (don't ask me why my very-smart-yet-dumb ass didn't go to the bankruptcy court's website to begin with). Complaint, cover sheet, summons.... it was all there with instructions (albeit not very clear instructions that I couldn't imagine making any sense to a lay person, because they barely made sense to me as a non-litigator attorney).

I got all my forms filled out and printed off, and took them to the bankruptcy clerk's office the next day. I walked up to the window and told them that I was there to file an adversary proceeding. The lady looked at me like I was nuts. Apparently, they don't get to many adversary complaints in their office because it took 4 women to figure out how to get my documents filed. Twenty minutes and $250 later (yes, filing fee was two-fitty) I had my case filed and skipped down the courthouse steps and went to work. And yes $250 was worth it to me to show him that I was NOT about to let him screw me over once again.

I guess The Ex got the summons about a week and a half later, because when my beau and I were at Son's football bingo night fundraiser we had a bit of an, uh, incident. The whole story is complete hilarium and is best saved for another post, but basically my beau was cordial and said hi to The Ex and his mother, and The Ex responded by coming over to where we were sitting, leaning over and saying "I could be cordial to you if you would quit fucking suing me." Wholly unnecessary. I told him not to get mad because I wasn't taking this shyt lying down and I was asserting my rights, and that he should have figured out a long time ago that I'm the wrong person to try and screw over from a legal perspective (Ms. Cum Laude law grad..... *a-hem*).

So this is my [non-legal] advice to anyone who has gone through a divorce and your ex later tries to file bankruptcy and leave you with all the debt....... according to the bankruptcy code, those debts are not dischargeable. This includes child support and spousal support obligations as well. I HIGHLY recommend seeking out the assistance of an attorney if you find yourself lumped in with the rest of your ex's creditors in a bankruptcy filing, because most likely his/her attorney will go ahead and do it because, as I stated earlier, not too many people challenge this. This is not something that the bankruptcy court will determine on its own.... you MUST file what is called an adversary complaint or adversary proceeding, which is basically a lawsuit within the bankruptcy, and the court then determines whether your ex's financial obligations to you are dischargeable.

I must clarify, though..... the bankruptcy will discharge your ex's obligations to the creditors themselves, but not to you. For example, let's say you had a joint Visa account and your ex agreed to pay off this account after the divorce. He/she then files bankruptcy. His/Her obligations to Visa will be discharged (meaning that Visa can no longer go after him/her) but you will still be on the hook as a joint debtor. However, this is where the non-dischargeability comes in.... you may still have to pay Visa, but you can then go back after your ex and have them pay you back (this is called indemnification..... you should definitely have indemnification provisions in your divorce settlement agreement). Visa is barred from attempting to collect this debt (that's what discharge means) but you are not.

I am still waiting to see what is going to happen in my case. I'm still within the 30 day window for him (i.e. his attorney) to file an answer to my complaint, and then I'm not really sure what happens after that. I'm hoping and praying that I am correct in my research and conclusions. But at least I can say I tried, and I didn't just roll over and concede defeat. At the very least, I'm satisfied with the fact that he had to come out of pocket additional money for his attorney, because things like this are not included in a flat fee bankruptcy case. But more importantly, I stood up for myself. Nope, I'm not going down without a fight.