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My ex-spouse has filed bankruptcy. He/she has listed me as a co-signer on a scheduled debt. What should I do? Does my divorce decree protect me?

If your ex-spouse has filed a chapter 7 and if you are a co-signer with your ex-spouse on a debt, the creditor can normally require the entire payment of that debt from you even though the divorce decree assigns the debt to your ex-spouse. The provisions of the divorce decree are not binding upon creditors. Depending on the terms of your divorce decree, however, non-support debts ordered to be paid by the ex-spouse under the decree may not be discharged.

If your ex-spouse has filed for bankruptcy under chapter 12 or chapter 13, the "automatic" stay extends to any individual co-debtor that is liable on consumer debts with the debtor (11 U.S.C. ยงยง 1201, 1301). In order to pursue collection from a co-debtor, the creditor must file and prevail on a Motion For Relief From Co-Debtor Stay using LBF 1220 and LBF 1220.5 for chapter 12 or LBF 720.80 for chapter 1--see also LBF 720 (Notice of Motion) and LBF 720.50 (Procedures re Motions for Relief from Stay). In addition, a chapter 12 or 13 debtor may be able to discharge non-support marital debt ordered in a divorce decree, even if it is not dischargeable in chapter 7.

As this is a very complicated area of law, you should seek legal advice from an experienced bankruptcy attorney for a thorough explanation of your rights and obligations in this area as soon as you find out that your ex-spouse has filed a bankruptcy.

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