Avoid bankruptcy during messy divorce

To Her Credit columnist Sally Herigstad
Sally Herigstad is a certified public accountant and the author of "Help! I Can't Pay My Bills: Surviving a Financial Crisis" (St. Martin's Press, 2006). She writes "To Her Credit," a weekly reader Q&A column about issues involving women, credit and debt, for CreditCards.com, and also wrote for MSN Money, Interest.com and Bankrate.com, and has guested on Martha Stewart Radio and other programs.

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Question for the CreditCards.com expert

Dear To Her Credit,
I'm going through a messy divorce where my husband is trying to force me out of the home by not making the mortgage payments and letting the bank send demand letters for payment. The bank will start foreclosure in 45 days. Both our names are on the mortgage, so it is affecting my credit.

I have $59,000 in unsecured debt that I acquired to hire an attorney. I've been making the payments and had hoped to be getting child support and spousal support, but that has not happened yet. I've been advised to move out and obtain my own apartment and other expenses. I can't afford to continue paying the unsecured debt payment.

What is the worst thing that could happen for not paying the unsecured debts or the judgment? I want to pay my debts, but his attorney is keeping him from paying me anything until we go to court. I cannot file for bankruptcy because we have marital assets tied to another loan he's trying to get me off.  -- Antoinette

Answer for the CreditCards.com expert

Dear Antoinette,
You've spent almost $60,000 for legal help that hasn't even managed to get you child support or spousal support, and you are about to lose your home. Your credit is being severely damaged at a time when you should be establishing it in your own right. I have to wonder, is your lawyer working for you or for your husband?

You say his attorney is keeping him from paying you anything. What's your attorney doing -- besides collecting your money? I'm not a lawyer, but it seems you should have spousal and child support by now, and probably an advance for your legal fees.

Karin Quirk, a lawyer in Washington state, agrees. "My first question is, 'Why is she not receiving child support or spousal support?' In the two states I have practiced, one of the first things to do is get temporary orders. In addition to child support and maintenance, you can get an order for attorney fees. It should take less than two weeks or a month to get such orders."

If your lawyer doesn't have an explanation for your delay in receiving support, you may need to get a second opinion. "I am appalled at someone having paid $59,000 in legal fees and not having temporary orders," says Quirk. "I would suggest a consultation with another attorney to review your case. Many attorneys provide a complimentary consultation or do so for a small fee."

You also need to put a cap on further legal expenses until you know what you are paying and what you can expect to get in return. Nancy C. Wear, a criminal appellate lawyer in Florida, recommends the following: "Get a litigation budget from the attorney. Most charge by the hour and give no estimate as to total cost or what they expect to do, in what length of time. Clients can and should get an estimate. See if she can afford this, before she signs on."

"She needs to STOP!" says Phil Petree, life coach. "Attorneys will keep the battle inflamed until they have milked every last cent from unsuspecting clients. This guy will put his child through Harvard while she spends the next 10 years paying off her debt."

Don't even consider bankruptcy. The last thing you need to do as you start your new, independent, financial life is to put yourself through the trauma of going bankrupt. Defaulting on your debt payments is not a good option either. You can't afford the hit to your credit history -- or the stress of collection efforts by your creditors. For your sake and the sake of your children, you must find a way to get the financial support you deserve from your husband.

Your husband's plan to starve you out of the house and drag out the divorce will quickly backfire when he is paying temporary support and for both his and your legal fees. Quirk says, "All of us have stories of couples spending hundreds to fight over the toaster oven. Ninety-five percent or more of all cases settle at some point. A good settlement mediator can help both parties come to a reasonable resolution." Perhaps the divorce will suddenly get less "messy" when your husband has motivation to agree to a fair and equitable settlement.

See related: Divorce and debt stories and advice, What to expect when filing for bankruptcy, Take control of debt, avoid bankruptcy, Establishing credit after divorce

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Updated: 10-22-2018