Category Archives: Family Law

Bankruptcy & Divorce, which first?

Bankruptcy and Divorce

Lets take the following hypothetical situation:

Ryan and Lauren are married but soon to be divorced.  Ryan is planning on moving from the marital residence in Miamisburg, Ohio, to Tennessee with his new girlfriend Jennifer.  Lauren has already moved to Kettering, Ohio.  Can they file a joint bankruptcy together in Dayton?  Would it be better to wait and file their bankruptcy after the divorce is final?

Divorces breed bankruptcies.  During the marriage there was one household with one set of expenses.  Once one spouse moves out, there become two households and two sets of expenses, and divorce litigation can be very costly.  Filing bankruptcy is often the only solution for people getting divorced.  But how does separation and divorce affect a Chapter 7 bankruptcy or a Chapter 13 bankruptcy?

Ryan and Lauren can file a joint petition at any time during their marriage, even if they are maintaining separate residences.  Filing joint bankruptcy is cheaper because saves the additional filing fee.  However, most bankruptcy attorneys will not advise filing a Chapter 13 bankruptcy in anticipation of a divorce.  Chapter 13 bankruptcies require that the debtors make monthly payments for 36 or 60 months.  This is impractical to do if the individuals involved will no longer be married.

The timing of the two separate cases in Ohio is also important.  Filing either a Chapter 7 bankruptcy or a Chapter 13 bankruptcy will stall any existing divorce proceedings.  The bankruptcy court issues what is called an Automatic Stay at the beginning of the bankruptcy that prohibits anyone from taking action on any debts.  Therefore, the divorce court cannot divide the debts of the spouses until the divorce case is final or a Relief From Stay is obtained from the bankruptcy court.  It is often considered preferable to file the joint Chapter 7 bankruptcy a couple of weeks before filing the divorce case, as the Chapter 7 bankruptcy does not generally take as long as a contested divorce.

A skilled bankruptcy attorney will be able to answer all of your questions about filing bankruptcy in the context of a divorce or separation.  Many Dayton-Springfield area attorneys offer free bankruptcy consultation.

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Montgomery, Greene, Butler, Clark, Miami and Warren County Ohio: Divorce Fact 6/10: How long will my divorce / dissolution case take?

THE TIMING OF THE CASE WLL VARY DEPENDING ON SERVICE OF PROCESS AND THE COURT’S DOCKET: If you are the Plaintiff (filing for divorce first), you must first “perfect service” of process and the court summons on the other party (Defendant) before the court (Greene, Butler, Montgomery, Clark, and Warren County Courts) will schedule a court date.  The Court does not have jurisdiction over the opposing party until he/she has been properly served with the appropriate paperwork.  Service is typically perfected via certified mail, issued by the Clerk of Courts shortly after the case is filed.  Essentially, the Clerk gathers all of the documents filed, creates its own summons, and requests that the postal service deliver the documents to the defendant via certified mail. The Court will not consider service perfected until the U.S.P.S. sends the return receipt to the Clerk of Court’s office.

If the defendant refuses to sign or otherwise claim the certified mail, the clerk of courts will then notify your attorney that service was not perfected.  The attorney will then ask the clerk to “re-issue” service via regular mail, as Ohio law allows service by regular mail if the certified mail was unclaimed or refused by the defendant.  Service can also be perfected via personal service by the county sheriff or a special process server (although these methods are more expensive than certified mail).  Regardless of how service is ultimately perfected, the court will not schedule the case for a hearing until service has been completed.   Further impacting the scheduling of the case is the court’s own docket.  Logically, if the court has a backed-up docket, your case will be scheduled out further than if the court’s docket is not as crowded.   How quickly you receive a court date cannot be controlled by the attorneys.

Brought to you by the Miami-Valley law offices of Morrison & Nicholson.  Author: Charles W. Morrison, Partner at Morrison & Nicholson. Call today to schedule a free consultation with an attorney by calling (937) 432 – 9775.

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Montgomery, Greene, Butler, Clark, and Warren County Ohio: Divorce Fact 7/10: Providing Financial Affidavits etc.

YOU WILL NEED TO PROVIDE CERTAIN PERSONAL INFORMATION: Some Courts have mandatory discovery procedures where each party must voluntarily turnover financial information to the other side (Montgomery County requires mandatory disclosure of financial information).  This helps both parties understand what marital and non-marital assets and liabilities are involved in the case and helps facilitate settlement.  Further, Ohio rules of civil procedure allow each party to demand certain information and answers under oath to certain questions from the other party.  Finally, certain courts, such as Greene County Domestic Relations Court and Montgomery County) require mandatory pre-trial statements be filed with the court (that contain an offer of settlement) that must be completed and exchanged between the parties before the pre-trial with the judge.

Brought to you by the Centerville, Ohio law offices of Morrison & Nicholson.  Call today to schedule a free consultation (937) 432 – 9775.

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Montgomery, Greene, Clark, and Warren County Ohio: Divorce Fact 8/10: When Minor Children are involved you must attend a seminar

WHEN MINOR CHILDREN ARE INVOLVED YOU WILL NEED TO ATTEND A SEMINAR: If the case involves children, Ohio law mandates that both parties attend a parenting seminar prior to the final hearing.  The purpose of the seminar is to educate both parents as to how children are affected by a divorce and ways in which to manage the adjustment.  The class is usually two hours and is held in the evenings.  The location of the seminar varies by county, as each county has its own seminar provider.  For instance, in Montgomery County the seminar is held at Sinclair Community College in downtown Dayton, Ohio.

Brought to you by the Miami Valley Ohio law offices of Morrison & Nicholson.  Call today to schedule a free consultation (937) 432 – 9775.

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