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bankruptcy and divorce
David and Dennis,
Historical correction. There is a Constitutional mandate that Congress enact uniform laws on Bankruptcy (and Immigration). The first bankruptcy laws were enacted in 1800 and repealed in 1803, coincidentally during Jefferson's term in office. Several other enactments followed in response to interim economic panics prior to the enactment of the 1898 Act.
Jefferson's words are as true today as they were in 1802: "I believe that banking institutions are more dangerous to our liberties than standing armies. If the American people even allow private banks to control the issue of their currency, first by inflation, then by deflation, the banks and corporations that will grow up around the banks will deprive the people of all property until their children wake up homeless on the continent their fathers conquered." Thomas Jefferson, 1802.
They are that much more prophetic as it relates to the power of banks today upon our elected officials through lobbying and political contribution, and when coupled with those of the Founding Fathers in the Declaration of Independence, should give each of us cause to be concerned that: "Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."
Just the musings of one soul. Best to all. Lou Esbin
>
> So neither David, nor I, filed.
>
> Sent from my iPhone
>
> On Jul 8, 2010, at 8:46 PM, "David A. Tilem" wrote:
>
> There is NO CONSTITUTIONAL RIGHT to file bankruptcy.
> For about 100 years we did not even have a bankruptcy law in this Country.
> For many years (much more recently) people who could not afford to pay the filing fee were unable to file bankruptcy.
>
>
> David A. Tilem
> Certified Bankruptcy Specialist*
> Law Offices of David A. Tilem (a debt relief agency)
> 206 N. Jackson Street, #201, Glendale, CA 91206
> Tel: 818-507-6000 Fax: 818-507-6800
>
> * Bankruptcy specialist cert. by State Bar of CA Bd of Legal Specialization.
> Business bankruptcy specialist cert. by Amer. Bd. of Certification
>
>
> -----Original Message-----
mjmannbk
> Sent: Wednesday, July 07, 2010 12:50 PM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] Re: BANKRUPTCY AND DIVORCE
>
>
>
> There are a lot of missing facts here.
>
> 1. Each party has management and control of CP, therefore wouldn't
> either party be able to file bk, even though it would affect CP,
> besides, as pointed out the right to file bankruptcy is in the
> constitution.
>
> 2. How is title held to the house? How much equity is in the house,
> after sales & trustee commissions? If this community assets pays
> off community debt how is that unfair, wouldn't any remaining
> balance be split equally.
>
> 3. How is title held to the car? How much equity in the car?
>
> 4. There is the issue of exemptions, which was discuss earlier this
> year. The filing spouse, which set of exemptions did he use?
>
> Marvin Mann
> 2706 Artesia Blvd
> Redondo Beach, CA
>
The post was migrated from Yahoo.
So neither David, nor I, filed.
Sent from my iPhone
On Jul 8, 2010, at 8:46 PM, "David A. Tilem" wrote:
There is NO CONSTITUTIONAL RIGHT to file bankruptcy.
For about 100 years we did not even have a bankruptcy law in this Country. For many years (much more recently) people who could not afford to pay the filing fee were unable to file bankruptcy.
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem (a debt relief agency)
206 N. Jackson Street, #201, Glendale, CA 91206
Tel: 818-507-6000 Fax: 818-507-6800
* Bankruptcy specialist cert. by State Bar of CA Bd of Legal Specialization.
on
jmannbk
Sent: Wednesday, July 07, 2010 12:50 PM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Re: BANKRUPTCY AND DIVORCE
There are a lot of missing facts here.
1. Each party has management and control of CP, therefore wouldn't
either party be able to file bk, even though it would affect CP,
besides, as pointed out the right to file bankruptcy is in the
constitution.
2. How is title held to the house? How much equity is in the house,
after sales & trustee commissions? If this community assets pays
off community debt how is that unfair, wouldn't any remaining
balance be split equally.
3. How is title held to the car? How much equity in the car?
4. There is the issue of exemptions, which was discuss earlier this
year. The filing spouse, which set of exemptions did he use?
Marvin Mann
2706 Artesia Blvd
Redondo Beach, CA
So neither David, nor I, filed.Sent from my iPhoneOn Jul 8, 2010, at 8:46 PM, "David A. Tilem" <DavidTilem@TilemLaw.com> wrote:
There is NO CONSTITUTIONAL
RIGHT to file bankruptcy.
For about 100 years we did
not even have a bankruptcy law in this Country.
For many years (much more
recently) people who could not afford to pay the filing fee were unable to file
bankruptcy.
David A.
Tilem
The post was migrated from Yahoo.
No damages, but yes, bankruptcy can be used for strategic purposes in
divorce related cases.
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem (a debt relief agency)
206 N. Jackson Street, #201, Glendale, CA 91206
Tel: 818-507-6000 Fax: 818-507-6800
* Bankruptcy specialist cert. by State Bar of CA Bd of Legal
Specialization.
robert90701@aol.com
Sent: Wednesday, July 07, 2010 9:50 AM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] Re: BANKRUPTCY AND DIVORCE
Yes, that is one concern. Can you comment on it.
Also using the bankruptcy exemptions for one spouse.
The actions of one spouse who acts unilaterally can affect all the community
assets and force liquidation of property with equity. Such as a
house, how about the car of the non-filing spouse. Isn't that correct?
Any thing I missed?
The original question asked about "damages" but the person is really asking
about how can the non-filing spouse can get screwed.
Thank you
Robert Suhajda
In a message dated 7/6/2010 7:00:28 P.M. Pacific Daylight Time,
robertvitt@vittlawfirm.com writes:
Seems to me I have heard of a number of cases where one party to an
adversarial divorce files BK....Is your concern that a marital asset may be
liquidated and distributed to a separate property creditor?
.
Avery" wrote:
>
> Filing for bankruptcy is a constitutional right, so it is hard to imagine
any factual scenario where it is a tort.
>
>
> ----- Original Message -----
> To: cdcbaa@yahoogroups. com
> Sent: Mon Jul 05 13:49:27 2010
> Subject: [cdcbaa] BANKRUPTCY AND DIVORCE
>
>
>
> Happy July 5th:
>
> The question below was posed to me recently and I would
> like your valued opinion please.
>
>
> I am going though a divorce at this time. Without notifying me, my spouse
filed a ch 7. We have not agreed on anything yet on division of
assets/liabilities, etc. What are my potential damages?
>
>
>
> Sincerely yours,
>
>
>
> Robert Suhajda
>
Message
No damages, but yes,
bankruptcy can be used for strategic purposes in divorce related
cases.
David A.
Tilem
Certified Bankruptcy
Specialist*
The post was migrated from Yahoo.
There is NO CONSTITUTIONAL RIGHT to file bankruptcy.
For about 100 years we did not even have a bankruptcy law in this Country. For many years (much more recently) people who could not afford to pay the
filing fee were unable to file bankruptcy.
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem (a debt relief agency)
206 N. Jackson Street, #201, Glendale, CA 91206
Tel: 818-507-6000 Fax: 818-507-6800
* Bankruptcy specialist cert. by State Bar of CA Bd of Legal
Specialization.
mjmannbk
Sent: Wednesday, July 07, 2010 12:50 PM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Re: BANKRUPTCY AND DIVORCE
There are a lot of missing facts here.
1. Each party has management and control of CP, therefore wouldn't
either party be able to file bk, even though it would affect CP,
besides, as pointed out the right to file bankruptcy is in the
constitution.
2. How is title held to the house? How much equity is in the house,
after sales & trustee commissions? If this community assets pays
off community debt how is that unfair, wouldn't any remaining
balance be split equally.
3. How is title held to the car? How much equity in the car?
4. There is the issue of exemptions, which was discuss earlier this
year. The filing spouse, which set of exemptions did he use?
Marvin Mann
2706 Artesia Blvd
Redondo Beach, CA
Message
There is NO CONSTITUTIONAL
RIGHT to file bankruptcy.
For about 100 years we did
not even have a bankruptcy law in this Country.
For many years (much more
recently) people who could not afford to pay the filing fee were unable to file
bankruptcy.
David A.
Tilem
Certified Bankruptcy
Specialist*
The post was migrated from Yahoo.
charset="windows-1251"
There aren't damages available, but there may be remedies. It depends on what damage is done as a result of only one spouse filing. For instance, if spouse is driving and making payments on a jointly owned car which filing debtor does not reaffirm--what happens if it is repossessed?
Suppose they have joint accounts at Wells Fargo which are frozen? Suppose an asset is taken for creditors. Could the family law court give the non-filing spouse a bigger share of the CP in compensation or order some payment?
Margaret Norman
111 N. Sepulveda Blvd. #355
Manhattan Beach, Ca. 90266
310-376-7873
The post was migrated from Yahoo.
There are a lot of missing facts here.
1. Each party has management and control of CP, therefore wouldn't
either party be able to file bk, even though it would affect CP,
besides, as pointed out the right to file bankruptcy is in the
constitution.
2. How is title held to the house? How much equity is in the house,
after sales & trustee commissions? If this community assets pays
off community debt how is that unfair, wouldn't any remaining
balance be split equally.
3. How is title held to the car? How much equity in the car?
4. There is the issue of exemptions, which was discuss earlier this
year. The filing spouse, which set of exemptions did he use?
Marvin Mann
2706 Artesia Blvd
Redondo Beach, CA
The post was migrated from Yahoo.
Yes, that is one concern. Can you comment on it.
Also using the bankruptcy exemptions for one spouse.
The actions of one spouse who acts unilaterally can affect all the
community
assets and force liquidation of property with equity. Such as a
house, how about the car of the non-filing spouse. Isn't that correct?
Any thing I missed?
The original question asked about "damages" but the person is really asking
about how can the non-filing spouse can get screwed.
Thank you
Robert Suhajda
In a message dated 7/6/2010 7:00:28 P.M. Pacific Daylight Time,
robertvitt@vittlawfirm.com writes:
Seems to me I have heard of a number of cases where one party to an
adversarial divorce files BK....Is your concern that a marital asset may beliquidated and distributed to a separate property creditor?
H. Avery" wrote:
>
> Filing for bankruptcy is a constitutional right, so it is hard to
imagine any factual scenario where it is a tort.
>
>
> ----- Original Message -----
> To: _cdcbaa@yahoogroups.com_ (mailto:cdcbaa@yahoogroups.com)
> Sent: Mon Jul 05 13:49:27 2010
> Subject: [cdcbaa] BANKRUPTCY AND DIVORCE
>
>
>
> Happy July 5th:
>
> The question below was posed to me recently and I would
> like your valued opinion please.
>
>
> I am going though a divorce at this time. Without notifying me, my
spouse filed a ch 7. We have not agreed on anything yet on division of
assets/liabilities, etc. What are my potential damages?
>
>
>
> Sincerely yours,
>
>
>
> Robert Suhajda
>
Yes, that is one concern. Can you comment on it.
Also using the bankruptcy exemptions for one spouse.
The actions of one spouse who acts unilaterally can affect all the
community
assets and force liquidation of property with equity. Such as a
house, how about the car of the non-filing spouse. Isn't that
correct?
Any thing I missed?
The original question asked about "damages" but the person is really
asking
about how can the non-filing spouse can get screwed.
Thank you
Robert Suhajda
In a message dated 7/6/2010 7:00:28 P.M. Pacific Daylight Time,
robertvitt@vittlawfirm.com writes:
Seems to me I have heard of a number of cases where one party to an
adversarial divorce files BK....Is your concern that a marital asset may be
liquidated and distributed to a separate property creditor? --- In cdcbaa@yahoogroups.com, "Wesley H.
Avery" <wavery@...> wrote:>> Filing for bankruptcy is a
constitutional right, so it is hard to imagine any factual scenario where it
is a tort.> > > ----- Original Message ----->40yahoogroups.com">cdcbaa@yahoogroups.com <cdcbaa@yahoogroups.com>>
To: cdcbaa@yahoogroups.com <cdcbaa@yahoogroups.com>>
Sent: Mon Jul 05 13:49:27 2010> Subject: [cdcbaa] BANKRUPTCY AND
DIVORCE> > > > Happy July 5th:> >
The question below was posed to me recently and I would> like your valued opinion please.> > > I am going though a divorce
at this time. Without notifying me, my spouse filed a ch 7. We have not agreed
on anything yet on division of assets/liabilities, etc. What are my potential
damages?> > > > Sincerely yours,> >
> > Robert Suhajda>
The post was migrated from Yahoo.
Seems to me I have heard of a number of cases where one party to an adversarial divorce files BK....Is your concern that a marital asset may be liquidated and distributed to a separate property creditor?
>
> Filing for bankruptcy is a constitutional right, so it is hard to imagine any factual scenario where it is a tort.
>
>
> ----- Original Message -----
> To: cdcbaa@yahoogroups.com
> Sent: Mon Jul 05 13:49:27 2010
> Subject: [cdcbaa] BANKRUPTCY AND DIVORCE
>
>
>
> Happy July 5th:
>
> The question below was posed to me recently and I would
> like your valued opinion please.
>
>
> I am going though a divorce at this time. Without notifying me, my spouse filed a ch 7. We have not agreed on anything yet on division of assets/liabilities, etc. What are my potential damages?
>
>
>
> Sincerely yours,
>
>
>
> Robert Suhajda
>
The post was migrated from Yahoo.
No damages. Spouse is entitled to file Chapter 7.
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem (a debt relief agency)
206 N. Jackson Street, #201, Glendale, CA 91206
Tel: 818-507-6000 Fax: 818-507-6800
* Bankruptcy specialist cert. by State Bar of CA Bd of Legal
Specialization.
robert90701@aol.com
Sent: Monday, July 05, 2010 1:49 PM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] BANKRUPTCY AND DIVORCE
Happy July 5th:
The question below was posed to me recently and I would
like your valued opinion please.
I am going though a divorce at this time. Without notifying me, my spouse
filed a ch 7. We have not agreed on anything yet on division of
assets/liabilities, etc. What are my potential damages?
Sincerely yours,
Robert Suhajda
Message
No damages. Spouse is
entitled to file Chapter 7.
David A.
Tilem
Certified Bankruptcy
Specialist*
The post was migrated from Yahoo.
Breach of fiduciary duty among spouses is found primarily in Family Code Sections 721, 1100 and the recent land-mark case of Marriage of Feldman (2007) 153 Cal. App. 4th 1470. It is not a tort but an issue to be raised at the family law trial. For example, if during the divorce one spouse fails to disclose community property assets to other spouse (the 2 weeks per year each year time share in Hawaii) that is a breach of fiduciary duty and a "Feldman" violation.
Family Code Section 721(b) tells us that: "In transactions between themselves, a husband and wife are subject tot eh general rules governing fiducairy relationships which controls the actions of persons occupying confidential relationships with each other. This confidential relationship imposes the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other. This confidential relationship is a fiduciary relationship subject to the same rights and duties of nonmarital business partners, as provided in Sections 16404, 16404 and 16503 of the Corporations Code. . ."
The duration of this fiduciary duty exists until the complete distribution of all community property assets and obligations of the divorcing parties. Family Code Section 2102(a) & (b).
Lindsey B. Green, Esq.
Gumm & Green, LLP, Attorneys at Law
5743 Corsa Ave., Suite 111
Westlake Village, CA 91362
phone: 818 707 4233
fax: 818 707 4262
e-mail- Lindsey@gummandgreen.com
----- Original Message -----
To: cdcbaa@yahoogroups.com
Sent: Monday, July 05, 2010 6:53 PM
Subject: Re: [cdcbaa] BANKRUPTCY AND DIVORCE
Thanks for the response. Although your answer was not the answer I expected
I can think of one tort which is Breach of Fiduciary Duty, since they
are still spouses.
In a message dated 7/5/2010 5:29:38 P.M. Pacific Daylight Time, wavery@rpmlaw.com writes:
Filing for bankruptcy is a constitutional right, so it is hard to imagine any factual scenario where it is a tort.
----- Original Message -----
To: cdcbaa@yahoogroups.com
Sent: Mon Jul 05 13:49:27 2010
Subject: [cdcbaa] BANKRUPTCY AND DIVORCE
Happy July 5th:
The question below was posed to me recently and I would
like your valued opinion please.
I am going though a divorce at this time. Without notifying me, my spouse filed a ch 7. We have not agreed on anything yet on division of assets/liabilities, etc. What are my potential damages?
Sincerely yours,
Robert Suhajda
The post was migrated from Yahoo.