Georgia Bankruptcy Blog

Yet another lesson that divorce decrees do not bind creditors, or trump a bankruptcy discharge -

In McGahee v. Rogers, No.  06A0885, 2006 Ga. LEXIS 674 (Ga. July 13, 2006), the husband
was liable for certain joint debts pursuant to the divorce decree. 

The final decree incorporated a settlement agreement pursuant to which neither party received alimony. However, the agreement did address the joint marital debts, and specified that each party would assume the obligation to pay certain of them and would indemnify and hold the other harmless for those that he or she assumed. The debts for which McGahee assumed responsibility included one owed to the Internal Revenue Service and another for the loan secured by a car to which he took title and possession. The tax liability was incurred when McGahee withdrew money from his IRA, but failed to include the withdrawn amount as income on the joint return which he and Ms. Rogers filed. The money from the IRA was used for household expenses and other items.

The husband then filed a Chapter 7 and received a general discharge, and the IRS and creditor went after the wife for payment of the debts at issue.  The wife filed a motion for criminal contempt against the husband for his alleged failure to comply with the divorce decree.  The husband defended on the basis that the debts were discharged, although no specific determination was made by the Bankruptcy Court. 

The court, under its concurrent jurisdiction, held that the debts were discharged under Section 523(a)(5) --

Ms. Rogers contends that the debts are not dischargeable because they were not secured by any property and were incurred for necessities, such as living expenses and an automobile, which constitute support. However, the underlying nature of the debts themselves does not have any legal consequence. The controlling issue is whether, at the time the settlement agreement was reached, the parties intended that McGahee's assumption of the obligation to pay the debts constitute an element of support for Ms. Rogers. As to that issue, the undisputed evidence demands a finding that they did not have that intent. Instead, the debt allocation was a element of the division of their marital property.

With respect to the attorneys fees awarded by the trial court, "McGahee [Husband] was justified in maintaining a "stubborn stance" with regard to his discharge in bankruptcy defense, since, for the reasons discussed in Division 1, he was entitled to prevail on that defense. "

Dear Georgia Bankruptcy Attornies:

Have any of you ever been party to a situation where the husband filed Chapter 13 independant of the wife while they were married and then is using that as a means to dodge paying alimony months later in a divorce against her?

The wife became disabled during the marriage. He has petitioned her for a divorce yet they remain living in the same home. The husband has witheld community property as well as personal property during this time. In addition he has withdrawn all financial support and has placed locks on several rooms in the home barring her from their use. She is completely at his mercy and I am dumfounded at the suggestion that she has no recourse.

She cannot afford a retainer but has a State Lawyer that has tasked her with finding out whether she would be denied according to the Chapter 13 rules. How the heck is she supposed to do that? And why the hell her attorney isn't looking into I will never know. It seems like a miscarriage of justice to me.

Has anyone out there in Georgia ever effectively argued against using Chapter 13 as a shelter against alimony or support? Can the Trustee be petitioned for release of funds to help support the wife?

My parents are considering filing bankrupty, due to loss of income, and
most of the debt is unsecured credit cards and 2 vehicles that have already been repossessed. My mother is on disability and my father is 70 years old.
What is the best thing for them to do, their home has appr. $60,000 in equity. But if they were to sell it they would have no place to go, as I am living in the home now also. Does the bankruptcy court consider extenuating circumstances? Can they keep their home?
The attorney they spoke with told them they would have a repayment plan of $1500.00, which does not include the house payment of $1200.00, one vehicle for $380.00 and utilities,food,medication and misc.
We are just getting by now without making
payments to these creditors. What can we do?

I am about to file for Chapter 7. Who is covered in Schedule 1? I am unemployed with no income. My wife is not part of bankruptcy. She works. Everything in her name except my old car. Do I include her income and household expenses, which she pays in forms? Also is there any paralegal that can assist with forms for a very small fee?

I'm in the midst of a divorce. No contest, my soon to be ex and I agreed to everything, he is responsible for his car, I am responsible for mine, yet both names are on the loans. He has since filed bankruptcy and did not include my car on the filing. My lender found out of the bankruptcy and has repoed my car. They are demanding loan be paid in full to get my car back. What can be done?

Myself and partner have recently split up. We have a home, truck(his) and car(mine) that are in both of our names, he filed Chapter 13 before the split and the note on the vehicles is directly taken from his check....now that we are split he wants my vehicle as well as his due to the funds being deducted from his paycheck. My question is, if the car is jointly owned, do I have rights to keep my vehicle?