6 answers

Effects of Bankruptcy on Custody Case?

Hi Mamas, I hoping for some insight from anyone that's been through anything similar to this on either side. I'll make it as brief as I can.

In 2004 I got divorced from my ex-husband, I assumed all of the debt, paid all of his final bills and shipped him off with $2500 in his pocket. He then had a judgment entered against him in 2005 for attorney's fees, court costs and travel costs when I had to take him to court for contempt to the tune of almost $3500. He has yet to pay any of it (or any child support, but that's a separate issue). We're currently slugging out custody again regarding my older son. I just got notice today that my ex and his wife filed for Chapter 7 bankruptcy. I am still one of his creditors since he's never paid that judgment, so I have some limited rights and responsibilities here, but I'm not entirely sure what they are.

I'm wondering: What does a Chapter 7 bankruptcy mean? What is my "absolute priority" as a court judgment creditor? Does that even make a difference since he doesn't have any assets to liquidate anyways? And how would this affect our custody case, especially since he has testified under oath, one month before he filed for bankruptcy, that he is fully capable of supporting our son and all of him and his wife's other dependents (total of 7 dependents including his wife, who doesn't work) on his 35,000 a year income (vice our four person household on 105,000 a year income)?

Anyone have any advice or stories to share that can shed a little more light on this for me? Thanks in advance!

A little more info: My son is 8, I am a SAHM (I'm actually a disabled vet), I homeschool etc... my son is in no way having any kind of issues. I do know in Virginia that financial circumstances is once of the factors that they consider, I just don't know how much weight it carries. I have been raising my son for his whole life with a brief period after the divorce where we had him for equal amounts of time in an effort to be absolutely fair and in order to determine the best home for him from school age on. Obviously that's with me, since that's where my son is now. My main point is that he testified that he was financially stable and a month later is filing for bankruptcy.... wondering if the courts would be interested in this bit of informaiton.

What can I do next?

So What Happened?™

Thank you all for your responses. You've given me a lot to think about and talk to my attorney about. Thanks for the encouragement too! :) Custody is always a scary thing, especially when you know your ex is only going for it to get out of child support and not because they truly care about the child and think it's in their best interest.

Thanks again and have a great holiday weekend, mamas!

More Answers

I work in the bankruptcy field and can sympathize with your situation. As a creditor, you have the right to show up at the hearing (Meeting of Creditors) at the date and time shown on the paperwork that you received. However, in a Chapter 7, there are rarely any assets to be liquidated. If there are, you will receive a separate notice from the bankruptcy court indicating that assets are available and you would need to file a proof of claim to have access to the money (distributed pro rata between all creditors who also file a proof of claim).

One thing that you can do is review a copy of the bankruptcy petition (they are public record with the exception of a few pages) against a copy of a recent financial statement to look for discrepancies. For instance, if he claims to own a vehicle on his financial statement but it isn't listed on the bankruptcy, you can call the bankruptcy fraud hotline and report him. Bankruptcy fraud is VERY seriously taken by the court and examples are made of the people who are caught. Additionally, if he lists far less income on his bankruptcy petition than on his financial statement, you could file an objection to the financial statement based on his petition (which is signed under penalty of perjury).

Finally, as you are preparing to litigate the custody issue, you can bring up the fact that you are "concerned" regarding his ability to monetarily care for your son as evidenced by his recent bankruptcy filing. Don't get too "crazy" about it, since those two things truly are not linked. To be honest, he technically has a "benefit" since although his income is low, he now has no bills.

I also wanted to mention that I recently went through a custody battle for my 13 yr old daughter and I did raise the financial concerns issue since he had not paid child support in a long time. It was one sentence in my otherwise lengthy memorandum, but it was taken as a factor in the overall decision. However, I would let your attorney make that final decision.

Good luck.

4 moms found this helpful

first off, since you are one of his creditors, you need to file in with his other creditors, and dont forget anything..child support owed, moneys not repaid, credit card bills you shared, but ended up paying yourself. find all your reciepts.. and then take him to the cleaners. if you paid for his car, demand the keys. etc. when your day in court comes, wear your full dress uniform, medals included, if your exhusband wants to play to play with peoples feelings, then you need to come out swinging, solider. the courts should be fully informed of his complete financial history, because if he has cried poverty before, only to walk away with a pad of cash in each pocket, then he will do it again , and again. you are disabled vet, he is not worthy to shine your shoes, remember that
K. h.

Updated

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3 moms found this helpful

I honestly don't know what, if anything you can do.
My slimey ex got out of support, and you're right, it's a separate issue, but I was awarded attorney fees and court costs for all the times he dragged me to court.
He filed bankruptcy, I didn't get a penny and my attorney made me pay all my fees. Thousands and thousands of dollars. Then, my attorney dumped me after getting his money saying that I couldn't afford him anymore.
I was the custodial parent, throughout all the hearings, none of that changed and I got stuck with all of it because my jerk ex husband had nothing better to do with his time than make life hard on me.
And, it worked.
I'm in California, but somehow he was able to have all those court ordered fees discharged. And, I got hosed.
Check with the laws in your state.
Unfortunately, I live in a little po-dunk place that doesn't even go after dead beat parents and the stable ones who provide for the kids get the shaft.

Sorry for venting, but that's how it works around here.
Maybe you'll have better luck where you are.
At least in my case, they didn't take his bankruptcy into consideration when it came to providing for the child. Other than allowing him out of his support obligations.
It makes no sense to me and I will never understand it.

All I can do is wish you well.

2 moms found this helpful

As far as getting paid back from your ex's bankruptcy, Starr said it perfectly.

About the custody situation, why is he fighting for custody? Is this out of the blue or has it been going on for a while? Did your son request to live with dad? Is your ex just trying to change custody to get out of paying child support? Is there a real legit reason he is seeking custody? Judge's don't like people to waste their time unless there is a legit reason, so this can be a big factor in determining custody.

No one will be able to tell you how much weight fincl circumstances will carry or if the judge will want to know about him filing BK. Judges are very unpredictable. I think that there judgement can be based on lots of things such as : if you carry yourself well, if you talk proper, if you dress proper, if you come across cocky, if they are having a bad day, if the people before you pissed him off, you get my drift. But some things really can help like : always talk directly to the judge, have your evidence readily available & copies for the judge, dress appropriately, be honest (good or bad).

Your ex's fincl situation may come into play & yes the judge should be made aware of it. Be sure to have any discrepancies highlighted from his BK papers & his fincl statement for the judge. But of course the heaviest weight on determining custody should be where the child would thrive the best.

I took my ex to court right before my dghtrs 18th bday for back support & I decided to add some things such as my ex keeping her on his health ins., college expenses, & a penalty fee for not paying the back child support. I was told by tons of woman that I would never get the judge to agree to college & the penalty fee for back support. But I thought well I'm taking him to court, the worst that could happen is the judge says no. Well everyone was shocked. I got everything I asked for & then some. In our child support order I noticed (it was a standard item typed in small letters) that it said there was a penalty fee of a certain percent (i cant remember how much) to be added to any back payments. And the penalty amount added up to more than $500 in penalty fee's on top of the past due child support. Also in our decree we agreed that my ex would pay me 20% on any amounts from other jobs, bonuses, commissions, etc & he never did pay me because it was all cash from side gigs he would do & I could never prove the additional income. But the judge asked him how much he got paid for this lsat gig I brought up& the judge awarded me the 20% for that particular gig, I didn't even request that additional money! My ex is ordered to pay 40% of her college too & half of her medical.

Go for everything your child deserves. Just make sure you have all your ducks in a row. Good luck

2 moms found this helpful

I can't answer anything related to your rights in his bankruptcy case except to suggest you talk with a bankruptcy attorney.

I can tell you that your ex's financial picture, as you described it, is unrelated to the custody issue. If he were to ask for reduced child support payments, the judge could reduce them based on his economic status. But how much money he has or owes is not related to his ability to be the custodial parent. If the judge were think that it would be in the best interests of your son to be placed in the custody of his father he would order you to provide child support in an amount commensurate with your income. Your child support would be greater than his has been.

Again, money is not an issue in which parent should have custody. The decision is based on what is in the best interest of the child.

Based on your information, I would guess that your ex will not look like a responsible person to the judge. However, the judge will base his decision on many other factors. If you have had primary custody from the time of the divorce and your son is thriving, I would doubt that he could gain custody. You don't mention your son's age. If he's a teen having difficulty, the judge could decide that he might be better off with his father. If your son is older (10-11) the judge will take into consideration his wishes. The judge is likely to order a family study. If he doesn't, you can ask for one.

If you don't have an attorney for the custody matter, I suggest that you at least consult with one. And you do need to ask attorney about the bankruptcy issues.

1 mom found this helpful

i have not myself been through this, but worked for years as a researcher in court cases. he has a very weak case, and yes, the courts would take this into consideration.
you are in an excellent position.
khairete
S.

1 mom found this helpful

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