[ARCHIVED THREAD] - Bankruptcy question (Page 1 of 2)
Posted: 2/9/2005 10:33:59 AM EDT
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How often can you legally file bankruptcy? My ex husband has learned how not to pay his child support. When the going gets rough [i.e. the state starts breathing down your neck threatening to put your butt in jail or suspend your licenses] just file bankruptcy. He has filed no less than 12 times in the past 4 years [I have documentation for each time]. He has one case being worked on [meaning - bankruptcy was granted but he has to pay his secure debt which includes in children - although he has never paid a dime there]. The rest have been thrown out. Could I have a suit against his attorney for malpractice? Patty |
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It depends on the type of bankruptcy. One cannot receive a chapter 7 discharge within 6 years of having received the last discharge. This is the most common reason a debtor will be ineligible for a chapter 7 BK. A discharge and a filing are not the same thing. Some debtors will file and dismiss repeatedly to dodge creditors. There are restrictions against this as well. I'll post some text on this in a moment. You will not be able to pursue his attorney for malpractice unless the attorney had a duty to you. In this instance, I haven't seen anything that suggests that he does. Please note that the foregoing and the following apply strictly to Chapter 7 BK. One could receive a discharge in Chapter 7 and then file a 13 in fewer than 6 years. 
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 Thank you. Yes, married my high school sweet heart. He left me and I've been thankful everyday of my life since then. Unfortunately [or fortunately depending on how you look at it] we have two kids together. They were 2 & 4 when he left and haven't seen him since. 
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No but he does know the ex is just doing this to get out of paying his child support. There should be something against that. Patty |
If that's what's really going on, the BK Court will hopefully get tired of the abuse of the system and sanction both the joker and his atty but good. If the State files a motion to lift/modify the automatic stay, that should permit the State to pursue him during the pendency of any case and should prevent serial refiling. Of course, you should always consult your own attorney for advice on such matters to ensure that you are properly represented. |
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Well personally I do not hold the attorney liable for my ex's disregard for his duty but I do think they should be attentive to the needs of the kids. I have never wanted to take food off of HIS table or cause him suffering but considering our kids will be in college soon, it would be nice for some help! Thank you for the info. Patty |
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Actually, you can file for protection under Chapter 11 of the United States Code, which includes Chapters 7, 9, 11, 12, and 13, every day of the week if you wish! What you cannot do is receive a Chapter 7 Discharge within six years of the filing of a petition for a previous Chapter 7 Bankruptcy discharge. Many times I have filed for Chapter 7 Bankruptcy relief within that time period and the folks on the other side scream bloody murder! Yes, we can, for we know full well that the client will NOT be receiving a Chapter 7 Discharge of his or her debts in that 'untimely' bankruptcy proceeding. Now, why would anyone file for bankruptcy knowing that he or she wouldn't be receiving a discharge from their debts? Simply to keep creditors off their necks and away from their doors. Or to recover preferntial or fraudulent transfers! Or to 'stay' state court proceedings (Like divorce or child support cases - sound familiar?). Many, many other reasons, as well. NOW! Getting back to Sister pattymcn's particular situation..... IF your husband has filed 12 cases within the last 4 years, the Bankruptcy Judge will be very, very interested in his newest case! Bring a Motion to Dismiss Case With Prejudice to Refiling the very next time that he files for bankruptcy protection, and the Bankruptcy Judge will order him NOT to file another Bankruptcy for at least 6 months, but, more likely, for several years thereafter! You will need an attorney to make certain that this is done properly, but recent changes to the Bankruptcy Code has made this even easier to do - you own lawyer not need to even be admitted to the local Federal Court to bring the Motion IF it involves collection of child support! You are, in effect, a bankruptcy attorney's worst nightmare in such cases! The Judge may even sanction the attorney filing the Bankruptcy for filing your ex-husband's latest bankruptcy case! And that may mean $Dollar$ for you! Eric The(GrinningLikeACheshireCat)Hun 
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 THANK YOU!
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Sister patty is your husband currently in a Chapter 13 Case? If he is, and he is NOT paying his court-ordered child support payments to you, although he claims that he is paying such support in his Schedule J, which was filed in his case, then you can go directly to have this case dismissed, or, better yet, converted to a Chapter 7 Case! With his history, and the 'serial filings' that he has made, it would NOT surprise me in the least that the Bankruptcy Judge would skewer In other words, he could lose whatever it is he's trying to keep...his home...his car...whatever! You are in the cat bird's seat, sweetheart, and could beat your ex- into the ground if you had a viscious, mean-spirited, nasty SOB such as myself representing you in that case! Well, you will just have to make do with a decent lawyer!  God Be With You and Your Family! If you have other questions, let me know! Eric The(BankruptcyHasBeenVeryVeryGoodToMe)Hun
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In most states, ONLY if that is contained in the Divorce or Child Support Order! You can be compelled in Texas to pay for 'special needs' children long after they reach the legal age of maturity!
If there is no pending divorce...what Judge has authority to dictate to the married father what he must pay? Divorce changes everything! Eric The(Everything!AsGodIsMyWitness!)Hun
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Well I agree to a point but considering he hasn't helped with braces or broken bones, or basket ball, base ball, softball or computer camp and when he abruptly stopped paying we had to sell the horse and stop traveling to OSHU for my son's treatments - I'm not terribly sympathetic. Patty |
True dat. In IL, there is an 'educational expenses' statute. Such expenses need not be provided for in any prior order (750 ILCS 5/513). This is true even if the child is no longer a minor. See, marriage has its permanency... it can cost you forever. An automatic stay does not apply to child support only when the property sought is not that of the bankruptcy estate. It is accurate to say that a CS obligation is not discharged in BK. |
Current child support payments are untouched by bankruptcy court proceedings. So, if you file a Chapter 7 Petition today, you do not have to worry (for a while, basically about 120 days) about the 2 years of past due payments you are behind, but you damn well better make the child support payment that becomes due on March 1, 2005! To pay back those 2 years of past-due child support payments, I would suggest filing a Chapter 13 Petition today, so that you could take anywhere from 3 to 5 years to repay your ex-wife those past-due child support payments! But you'd better keep current on all of your 'post-petition' child-support payments! It's an easy way to get your case dismissed with prejudice and your azz in a real bind! Past due child support payments, like unpaid Form 1040 taxes, and other taxes, student loans, etc., are subject to the restrictions on collection that result from the petition for relief in a bankruptcy case. They cannot be discharged ('forgiven') in a Chapter 7 or a Chapter 13 case, but collection attempts are halted, and that is usually all that the debtor wants! Eric The(HopefullyHelpful)Hun
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Damn straight! And my recent surgeries, with the attendant pain, have only added to my misanthropic attitude! Just hire me before the other side does! Eric The(ProtectingWidowsAndOrphansSince1979)Hun
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So what do you do if he hasn't? He hasn't paid any in several years and he files bankruptcy left and right. He is currently in a Chapt. 13 which he's suppose to make payments on but isn't [or at least we're not getting any?] The problem is - I know he works. I haven't figured out where but considering there's only 1 nuclear power plant in the state of Oregon [on OSU's campus] it isn't too difficult to figure out where? Patty |
Not quite. Income tax debts can be discharged in bankruptcy, but there are rules that must be met. For example, for discharge under Chapter 7, the tax return must be due at least three years before the bankruptcy petition is filed; a return must be filed; and at least two years must pass before the bankruptcy petition is filed if the tax return is filed late, the taxpayer must wait 240 days from the date the taxes are assessed before filing for bankruptcy, and fraud must not be involved. Under Chapter 13, taxes can be discharged even if no return was filed, the return was filed late, or a fraudulent return was filed; however, there are limits that cannot be exceeded: $871,550 secured; $290,525 unsecured. |
That was very helpful. Thanks for clearing that up. (BTW, I was just asking for Pattymcn - I'm not looking to get out of child support. ) |
FWIW I knew your point and agree - a parent should have a say in how much they choose to contribute to a child's education. In my ex's defense his parents didn't contribute a dime to his education - I paid for it all along with my own. I will never put my children through what I did to survive the college years -- however I do not believe they should be given a blank check each month either, nor should he [ex] be over burdened. Patty |
ETA: oops! Posted this reply before you added that last paragraph! |
Yes, ordinary income taxes (Form 1040) can be discharged in either a Chapter 7 or Chapter 13 Case, IF they are old enough, and there has been no interruption of those periods set forth in that statute. Do you really want me to explain all this to someone in a thread about child support? If you think you really know more about discharging taxes in a bankruptcy than I do, would you care to place a small wager on it? Dweebs! Eric The(Sheesh!)Hun
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Not I, but I would put a wager on any of the three tax attorneys I work for. Two of which are former IRS District Counsel. |
Now THAT would be an interesting little wager. |
Well, most of my bankruptcy cases are referred to me by tax attorneys. But then you work for several! That's cool! Oh, BTW, there are a whole lot more exceptions to discharge than I previously mentioned. A whole lot more. Maybe your bosses can tell you more about them! Eric The(OrYouCanSeeIfYouCanFindThem!)Hun
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I'm still willing! I'm pretty certain of myself! Eric The(Pffft!)Hun
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Eric, Your brilliant mind never fails to impress me Mike |
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Wait just a damn minute! I re-read my reply to pattymcn on the preceding page and someone didn't quite quote me correctly, did he? My reply was this: Past due child support payments, like unpaid Form 1040 taxes, and other taxes, student loans, etc., are subject to the restrictions on collection that result from the petition for relief in a bankruptcy case. They cannot be discharged ('forgiven') in a Chapter 7 or a Chapter 13 case, but collection attempts are halted, and that is usually all that the debtor wants! [Emphasis added] Speaking of 'past due child support payments', 'they' cannot be discharged in Chapter 7 or Chapter 13 cases. Which is precisely correct! So stuff it! Eric The(I'dStillLikeToTakeTakeThatBet!)Hun
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It's settled, you're hired! How much kibble are we talking to retain you? 
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Life's a dog eat dog world and I'm wearing milk bone underware!  Pattymcn PS Thank you very much for your information and time! |
I haven't seen him for 9 years [wahoo] but if this picture is new he has a full head of hair. link |
Dear Patty, You seem like a nice Gal...Sorry about your Probs  Mike |
Post from pattymcn -
Hmmmm. A real estate agent, eh? I don't ordinarily do family law matters, but here in Texas, I believe, IF you are behind on your child support, I think the Texas Real Estate Commission can jerk your realtor's license! Try calling Oregon's Real Estate Commission or whatever and see if Oregon does the same thing! It's worth a call! Eric The(Coniving)Hun
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Is his name Herman? he has been busy filing. IN RE: CHARLES MEULINK AND JANET CAROL MEULINK IN RE: CHARLES MEULINK AND JANET CAROL MEULINK 3 MEULINK, HERMAN NICHOLAS orbke 01-64567 06/14/2001 7 HERMAN NICHOLAS MEULINK AND LUANN ELAINE MEULINK 4 MEULINK, HERMAN NICHOLAS orbke 03-64308 05/23/2003 13 HERMAN NICHOLAS MEULINK AND LUANN ELAINE MEULINK 5 MEULINK, HERMAN NICHOLAS orbke 04-69404 12/02/2004 13 HERMAN NICHOLAS MEULINK AND LUANN ELAINE MEULINK 6 MEULINK, HERMAN NICHOLAS orbk 90-30408 01/25/1990 13 IN RE: HERMAN N. MEULINK AND PATRICIA H. MEULINK 7 MEULINK, HERMAN NICHOLAS orbk 90-30408 01/25/1990 13 IN RE: HERMAN N. MEULINK AND PATRICIA H. MEULINK IN RE: CHARLES MEULINK AND JANET CAROL MEULINK IN RE: CHARLES MEULINK AND JANET CAROL MEULINK 10 MEULINK, LUANN ELAINE orbke 01-64567 06/14/2001 7 HERMAN NICHOLAS MEULINK AND LUANN ELAINE MEULINK 11 MEULINK, LUANN ELAINE orbke 03-64308 05/23/2003 13 HERMAN NICHOLAS MEULINK AND LUANN ELAINE MEULINK 12 MEULINK, LUANN ELAINE orbke 04-69404 12/02/2004 13 HERMAN NICHOLAS MEULINK AND LUANN ELAINE MEULINK 13 MEULINK, LUANN ELAINE orbke 97-65489 09/26/1997 13 LUANN ELAINE MEULINK 14 MEULINK, NICK orbke 01-64567 06/14/2001 7 HERMAN NICHOLAS MEULINK AND LUANN ELAINE MEULINK 15 MEULINK, PATRICIA HELEN orbk 90-30408 01/25/1990 13 IN RE: HERMAN N. MEULINK AND PATRICIA H. MEULINK 16 MEULINK, PATRICIA HELEN orbk 90-30408 01/25/1990 13 IN RE: HERMAN N. MEULINK AND PATRICIA H. MEULINK |
Yup that's him! And for the record the one with MY name in it was after he left but before the divorce was settled. Took me forever to get my name clean! Patty *ETA* I'm pretty sure there's more than this too as I get a notice from the state as he puts down his owed CS each time! |
I defer to the greter knowlege of my brother in the law Eric-The-Hun Like it was said above: Contact the agency that provides licenses for real estate. You may also be able to yank his drivers license if he is behind on his child support. |
The state did revoke his drivers liscense and his real estate liscense but his filing bankruptcy stopped that and they had [or so they claim] to reinstate it. Bankruptcy is a powerful thing. Patty |
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WEEELL, I would put the pressue on him again, file motions to revoke, let him file BR, march myself right over tothe BR and file a motion to dismiss and a motion for sanctions and a motion to lift stay, heck, one of them would stick, Then I would march back to family court and ask the judge to through his ass in jail. I would first ask the judge in the Fam Court to toss him in jail first and then go get rid of the BR. Hopefully, the Fam Ct judge would toss him in jail until the BR stay was lifted. ME: Your honor, the deadbeat has filed BR, but missed the C/S that was due on the 1st or 15th (the one right after he filed) please put him in jail for contempt. Judges in Houston don't like deadbeat dads. |
Can I do any of this myself or do I have to have an attorney? I've written a motion to show cause myself but I do not know how to file it. I can not afford an attorney. I'm certain the divorce court [here in Oregon divorce is through our state circuit court] would support me as he hasn't paid any child support at all in the last 4 years. 
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