Filing for bankruptcy protection can be a powerful step towards not only financial freedom, but freedom from financial oppression. It is possible to get this relief without risking your or your children’s safety. This article is all about making sure that your abuser can’t use the bankruptcy court system to further victimize you.
Written by Attorney Andrea Wimmer.
Updated August 7, 2020
Filing bankruptcy - either with or without an attorney - can get you the financial fresh start you need to grow in your independence and make sure your family is taken care of. Chapter 7 bankruptcy can get you this debt relief in as little as 4 - 6 months.
Filing for Chapter 7 bankruptcy relief involves a few steps you’ll need to take before the case is filed (credit counseling, preparation of your bankruptcy forms) and certain steps - including at least 1 visit to the courthouse - after the case is filed. You can learn more about how to file a Chapter 7 bankruptcy and go through the process in this detailed guide.
Of course, the guide is general in nature and survivors of domestic violence are faced with an issue that doesn't typically come up in the general case: Making sure that your abuser can’t use the bankruptcy court system to further victimize you.
Let's take a look at what kind of information you'll be disclosing to the bankruptcy court, and how to make sure you take advantage of all protections available.
Since you will need a reliable mailing address to make sure you receive important correspondence and court notices about your case, the first thing you should do is set up a PO Box where you can receive mail, if you haven't already.
The petition that is submitted to the court to start a bankruptcy case, called the Voluntary Petition, asks you to list your residential address and your mailing address. Since this document is part of the public record, you don't want to put your residential address on this document. Otherwise, anyone can find out where you live just by checking court records.
First, call the clerk of the bankruptcy court that you’ll be filing in to find out if they have any specific steps you need to take to keep your residential address secret. Some districts have strict rules about the process that need to be followed.
Others simply have the filer list their mailing address in both spots, then provide the information about their residential address to the Office of the United States Trustee (a division of the Department of Justice) and their case trustee directly, without putting the information into the public record.
This will take care of the most important part - making sure your home address is not made available to the public at large. This is not the same thing as filing the case under seal, so the fact that you filed for bankruptcy protection will still be part of the public record.
What if I’m unable to access certain information about our joint financial matters and property?
Someone who is married but filing without their spouse is generally required to include certain information about the nonfiling spouse in their bankruptcy forms. This guide on how to file bankruptcy without your spouse provides an overview. If you don’t have certain information because your spouse is refusing you access to it, here are some tips on how to best handle that:
Regarding their income
The nonfiling spouse’s income is generally included in the bankruptcy forms, including the eligibility analysis under the means test. However, if you’re separated from your spouse, it’s ok not to include their income information. The main thing the court wants to verify is that you can’t pay your debts as they come due. If your spouse is not sharing their income, then the court can’t use their income as part of this determination.
If you receive any financial assistance from them, including child support, make sure you include this information in your means test form and on your Schedule I.
If you filed your tax returns jointly, and you no longer have access to your tax returns, you can request a transcript from the IRS. This will be sufficient to satisfy the requirement that you submit your most recent tax return to the trustee.
Regarding their debts
The main thing you should focus on is making sure that all of YOUR debts are listed. You should be able to get the information for any joint accounts you have from your credit report.
Unless you’re in a community property state, you don’t have to worry about listing their debts on your forms. If you are in a community property state, try to remember all the big ticket items. Is there a car loan? A mortgage? Do your best to remember the name of the lender and look up their information online (if it’s not on your credit report already).
Regarding joint property
First, make sure you list all of the property you have in your possession.
Next, think about what type of expensive items, like electronics, jewelry, collections, or cars you had when you lived at the same residence and do your best to list it from memory. Do this even if you’re not sure whether they still have the item and make a note on your schedule that the location of each of these items is “unknown.”
Finally, if you think you’re definitely forgetting some property that the court needs to know about, it’s ok to put a placeholder on your schedules indicating that there is miscellaneous other personal property held by your spouse.
Throughout the process, just remember that all you can do is your best. As a domestic violence survivor you already have more on your plate than most and the court and other participants in the bankruptcy process will understand that there are certain limitations about the information you have access to.
If your spouse is hiding property from you (and your creditors) that should be used to pay your creditors, the trustee can do the heavy lifting of figuring out the “what” and the “where.” While you’ll be expected to share whatever information you actually do have with the trustee, you are not expected to put your safety at risk to find out information you can’t access.
If you know that your marital assets (i.e. all the property that was accumulated during your marriage) includes a lot of valuables (investment property, valuable art, vehicles that are paid off, etc.) that would be liquidated in joint bankruptcy and that your abuser has the financial resources to fight in court, consider speaking to a bankruptcy attorney. While you don’t have to hire an attorney, if you already know that there will be more than a little bit of interaction between the trustee and your abuser, it’ll be helpful to have someone that’s on your side advocate for you. You may be able to get free help from a legal aid organization in your area.
Will my abuser find out about my case?
Whether your abuser will find out about the case depends on whether you owe them (or family members or friends they're friendly with) any money. If you do, you have to list them as a creditor and the court will send them a copy of Form 309A.
The form will tell them that you filed, what your case number is, what your mailing address is, and what date and time your meeting of creditors will take place. In other words, they'll know when you'll be at the court, exactly.
How to stay safe when going to court
There are a few things you can do to protect yourself. First, if you think it's at all possible that they'll show up to court while you're there, call your trustee. Tell them what's going on and ask if they can alert court security to this possibility.
The trustee, who wants to make sure that your creditors' meeting goes smoothly, will usually be able to let the federal marshals, who provide court security, know so they can plan to have a marshal nearby when the time comes for your meeting. You can even provide them with a picture in advance so the marshals and your trustee know who to be on the lookout for.
Since you'll be inside a federal building for the creditors' meeting, you'll be protected once inside. No one can get in without going through security, including a metal detector.
Leave early, stay late
Try to get to the courthouse a few hours before your meeting time. Showing up way early (if you can) allows you to avoid running into anyone that might show up right before your meeting starts. Alternatively (or additionally), bring a friend so you're not walking from your car to the court on your own. Your friend can come into the courthouse and even the meeting room with you, so you're not alone.
Be mindful when exiting the building as well. If in doubt, ask if one of the marshals to escort you to your car.
How often do I have to go to court?
Most Chapter 7 cases require you to go to court only once: for your creditors’ meeting. If you have a car loan you wish to reaffirm, there may be a hearing before a judge. In that case, follow the same steps as with the creditors’ meeting, but instead of letting the trustee know, call the clerk’s office to alert them. They’ll make sure there’s an extra marshal or two in the courtroom, just in case.
Filing for bankruptcy protection can be a powerful step towards not only financial freedom, but freedom from financial oppression. It is possible to get this relief without risking your or your children’s safety. It’s never a bad idea to speak to a legal aid organization or lawyer in your area to find out more about your district’s specific processes for handling situations like yours. If you can afford to hire a lawyer, you’ll be able to put one more layer between you and your abuser, but make sure to choose a lawyer that you’re comfortable with. But, there is nothing that says you have to hire a lawyer to file Chapter 7 bankruptcy. So, if filing is seemingly out of reach because you can’t afford an attorney, remember that you’re absolutely capable of handling this on your own. And, if you qualify, you can use Upsolve’s free app to prepare everything you’ll need to file with the court.