topic Re: Anyone out there with knowledge of debt and divorce in Wisconsin (Community Property State)? in Relationships and Money

Anyone out there with knowledge of debt and divorce in Wisconsin (Community Property State)?

valley_man0505 — Mon, 20 Aug 2012 21:03:52 GMT

I have a CA coming after me for a medical debt incurred by my ex-wife after we filed for divorce but before our divorce was final. Unfortunately, the original petition that was filed was very vague about how debts incurred after the filing would be handled, so everything is being treated as if we are both equally responsible, as per the Wisconsin Community Property Act.

These debts are the only negatives on my report and the CA will not delete even if I pay. My ex-wife is a deadbeat living off of welfare, so suing her for the money is not an option. I believe I found a loophole in the Community Property Act that would elminate my liability for this debt, however. I can provide more details if there is anyone here who is familiar with Wisconsin divorce and/or can speak "legalese" well enough to interpret the Act.

Before anyone asks, yes, I have tried contacting a couple different attorneys. However, there are no attorneys in my area who are willing to really dig into the nitty-gritty of the law (at least not without getting paid a huge sum first) so they all just keep giving me very basic advice that is obviously very conservative in order to protect themselves. I would actually be willing to pay an attorney if one of them would at least look into the details enough to say "yes, I think you have a case", but none of them I have talked to will even say "yes" or "no" without a huge consultation fee. I also have not had any luck finding any attorneys in my area willing to fight against a collection agency--it seems that they all are already working FOR the collection agencies.

Kind of makes me want to get my law degree so at least SOMEONE around here is willing to take the consumers' side once in a while.

The CA has been threatening to sue me for over 2 years now, but they have never actually filed suit even though I have tried disputing the debts multiple times with them. If they haven't actually filed suit by now, I don't think they ever will. At some level, they must even question whether or not they could win if they take me to court--otherwise, I don't see why they wouldn't have done it already. So, maybe if I take a more offensive approach and come after them through the courts to remove the debt, they will finally agree to remove it and focus their energy on all the people that just "roll over" for them. I don't want to try this unless I know if I have at least a leg to stand on, though.

Re: Anyone out there with knowledge of debt and divorce in Wisconsin (Community Property State)?

GregB — Tue, 21 Aug 2012 16:35:38 GMT

I have no familiarity with WI community property laws but quite a bit with another community property state. I am assuming they are similar.

In general, you and your ex were one financial entity until the date the marriage ended. That means you are responsible for each other's debts before that date. Your final divorce documents should say something like "the marriage began on 1/1/2000 and ended on 2/1/2010, a marriage of 10 years and 1 month". In that example any debts incurred after 2/1/2010 would be individual debts.

The divorce documents may also spell out certain community debts that are the individual responsibilty of each party. The creditors do not care about this as they were not a party to your divorce. If your ex does not follow these orders, you can sue her or bring her back to court for violating the court order. You can't use this to tell creditors what to do as they won't care.

I'm going to make a wild guess and say that your court used the date of the document for the date the marriage ended. Your attorney should have written this up to use Date of Separation as the day the marriage ended. I'm not going to guess what your state calls that document but it will probably have a title that refers to "Dissolution of Marriage". Look at it and we can go from there.

Re: Anyone out there with knowledge of debt and divorce in Wisconsin (Community Property State)?

valley_man0505 — Wed, 22 Aug 2012 19:21:53 GMT

Thanks for the response. Your comments sum up basically what I have found so far as well. "Technically" I could sue my ex-wife, but that would be about as succesful as trying to get a gallon of blood from a two-pound turnip.

The "catch" that I am looking at in the community property law is that it appears that one can argue that if the debt incurred by one spouse did not serve a purpose for "the benefit of the family", that the other spouse is not automatically liable, even if the debt was incurred during the marriage. See the links below:

Wisconsin Marital Property and Debt After Divorce

Table Referenced in Marital Property Article

The second link is a table that more or less sums up my arguement. The first link is a little more detailed.

Re: Anyone out there with knowledge of debt and divorce in Wisconsin (Community Property State)?

GregB — Wed, 22 Aug 2012 22:53:30 GMT

I like most of what this article contains. I am concerned that the actual real-world results may be very different than what the Wisconsin State Bar thinks they SHOULD be. I read this article as an attempt to influence future litigation. It could take a bunch of articles, new laws, and new court rulings that set precedent in order to get anything to change.

The big concern is that this is still information on the rulings of the court that affect the two of you. The creditors are not a party to your divorce and can't be ordered to do anything without due process. If they sue both of you, you might use this law to ensure that the judgement bypasses you and names only your ex. That doesn't get this off your credit reports or eliminate going to court. It is going to take one of the better lawyers to argue this successfully. I have to believe the intent of the law is to define what can be done during the divorce and what statements can be in the Judgement of Dissolution (or your states equivalent). The language of that judgement is up to the attorneys involved in the divorce.

BTW, I would think any language in the origninal court documents is irrelevant. They meant very little and only that for a short time.

I think that any debt your ex incurred before the date specified on the Judgement of Dissolution (or your states equivalent) is going to haunt you. If I was going to spend money on a lawyer, I would think about returning to court to correctly specify the correct date for the end of the marriage. They might call this date of separation or the date the marriage ended but you want this to be the date that the two of you separated you finances.

Re: Anyone out there with knowledge of debt and divorce in Wisconsin (Community Property State)?

valley_man0505 — Tue, 28 Aug 2012 16:09:58 GMT

I just found one more possible angle in the event that my arguement regarding the debt not being "in the best interest of the marriage or family" does not work. The "meat and potatoes" of the entire Marital Propery Act are essentially stated in s. 766.55 (2) (b):

"An obligation incurred by a spouse in the interest of the marriage or the family may be satisfied only from the marital property and all other property of the incurring spouse"

My interpretation of the above statement is that once all marital property has been exhausted, if the obligation still has not been met, only the property of the incurring spouse is available to satisfy the rest of the obligation. At the time this debt was incurred by my ex-wife, we had no assets--only debts. Therefore, there was no marital property even available to satisfy this obligation. Wouldn't this mean that only my ex-wife's property is available to satisfy this obligation?

Re: Anyone out there with knowledge of debt and divorce in Wisconsin (Community Property State)?

GregB — Tue, 28 Aug 2012 16:52:43 GMT

That is how I interpret that. Is there any reference to during the marriage, after separation, after filing for divorce, etc.?

Something about that sounds "off" for a Community Property State. Depends on the surrounding text.

Generally all property and debts are assumed to be Community unless determined to be Separate in the Judgement of Dissolution. You still can't assign debts to one spouse or the other and have that ruling affect the creditor without the creditor being a party to your divorce. In other words, the creditors still can get a judgement against both of you and then you have to get a judgement against your spouse.

Re: Anyone out there with knowledge of debt and divorce in Wisconsin (Community Property State)?

valley_man0505 — Tue, 28 Aug 2012 20:09:56 GMT

Yes, this refers to debts incurred during the marriage.

I am not so sure that assigning the debt to one spouse or the other is relevant here. This statement is still saying that I am liable, but it is limiting my liability to the extent of the marital propery available. My liability ends after the marital property is exhausted. After the marital property is exhausted, only the incurring spouse's personal property can be pursued. Since we had no marital property available, my liability becomes 0 for any debts incurred by my ex.

Of course, I am no lawyer by any means, so I could be way off on that interpretation.

If you are bored, here is the entire section:

766.55 Obligations of spouses.

766.55(1) (1) An obligation incurred by a spouse during marriage, including one attributable to an act or omission during marriage, is presumed to be incurred in the interest of the marriage or the family. A statement separately signed by the obligated or incurring spouse at or before the time the obligation is incurred stating that the obligation is or will be incurred in the interest of the marriage or the family is conclusive evidence that the obligation to which the statement refers is an obligation in the interest of the marriage or family, except that the existence of that statement does not affect any interspousal right or remedy.

766.55(2) (2) After the determination date all of the following apply:

766.55(2)(a) (a) A spouse's obligation to satisfy a duty of support owed to the other spouse or to a child of the marriage may be satisfied only from all marital property and all other property of the obligated spouse.

766.55(2)(b) (b) An obligation incurred by a spouse in the interest of the marriage or the family may be satisfied only from all marital property and all other property of the incurring spouse.

766.55(2)(c) (c)

766.55(2)(c)1.1. An obligation incurred by a spouse before or during marriage that is attributable to an obligation arising before marriage or to an act or omission occurring before marriage may be satisfied only from property of that spouse that is not marital property and from that part of marital property which would have been the property of that spouse but for the marriage.

766.55(2)(c)2. 2. An obligation incurred by a spouse before, on or after January 1, 1986, that is attributable to an obligation arising before January 1, 1986, or to an act or omission occurring before January 1, 1986, may be satisfied only from property of that spouse that is not marital property and from that part of marital property which would have been the property of that spouse but for the enactment of this chapter.

766.55(2)(cm) (cm) An obligation incurred by a spouse during marriage, resulting from a tort committed by the spouse during marriage, may be satisfied from the property of that spouse that is not marital property and from that spouse's interest in marital property.

766.55(2)(d) (d) Any other obligation incurred by a spouse during marriage, including one attributable to an act or omission during marriage, may be satisfied only from property of that spouse that is not marital property and from that spouse's interest in marital property, in that order.

766.55(2m) (2m) Unless the dissolution decree or any amendment to the decree so provides, no income of a nonincurring spouse is available for satisfaction of an obligation under sub. (2) (b) after entry of the decree. Marital property assigned to each spouse under that decree is available for satisfaction of such an obligation to the extent of the value of the marital property at the date of the decree. If a dissolution decree provides that the nonincurring spouse is responsible for satisfaction of the obligation, the obligation may be satisfied as if both spouses had incurred the obligation.

766.55(3) (3) This chapter does not alter the relationship between spouses and their creditors with respect to any property or obligation in existence on the determination date. An obligation of a guarantor, surety or indemnitor arising after the determination date under a guaranty or contract of indemnity or surety executed before the determination date is an obligation in existence on the determination date.

766.55(4) (4) Any written consent signed by a creditor which diminishes the rights of the creditor provided in this section is binding on the creditor.

766.55(4m) (4m) Except as provided under s. 766.56 (2) (c), no provision of a marital property agreement or of a decree under s. 766.70 adversely affects the interest of a creditor unless the creditor had actual knowledge of that provision when the obligation to that creditor was incurred or, in the case of an open-end plan, as defined under s. 766.555 (1) (a), when the plan was entered into. If a creditor obtains actual knowledge of a provision of a marital property agreement or decree after an obligation is incurred or an open-end plan is entered into, the provision does not adversely affect the interest of the creditor with respect to that obligation or plan, including any renewal, extension, modification or use of the obligation or plan. The effect of this subsection may not be varied by a marital property agreement or a decree. This subsection does not affect the application of ch. 706.

766.55(5) (5) This chapter does not affect the exemption of any property of spouses from availability for satisfaction of an obligation, provided by other law.

766.55(6) (6) Subsections (2) and (2m) and s. 859.18 do not affect the satisfaction of an obligation of a spouse from collateral or other security for that obligation.

766.55(7) (7) Property available under this chapter to satisfy an obligation of a spouse is available regardless of whether the property is located in this state or whether this chapter no longer applies because one or both spouses are no longer domiciled in this state.

766.55(8) (8) After the death of a spouse, property is available for satisfaction of obligations as provided in s. 859.18.

Re: Anyone out there with knowledge of debt and divorce in Wisconsin (Community Property State)?

valley_man0505 — Tue, 28 Aug 2012 20:25:49 GMT

I just noticed that 766.55(2m) also seems to support my interpretation:

Re: Anyone out there with knowledge of debt and divorce in Wisconsin (Community Property State)?

GregB — Tue, 28 Aug 2012 23:53:12 GMT

I wish reading that helped me to change my opinion of your case. Having the active links included helped to see the other relevant sections of procedural code. For example s. 766.56 (2) (c) spells out where she could have specified the debt properly when she incurred the debt. That might help if/when you go after her.

s. 766.55(4m) spells out what I was saying about your divorce not affecting creditors.

I hope some attorneys look this over and give you some additional feedback. RobertEG may have some ideas but we really miss O6, who had a good overview of the laws in all the states as a former US Attorney.

Re: Anyone out there with knowledge of debt and divorce in Wisconsin (Community Property State)?

haulingthescoreup — Tue, 18 Sep 2012 05:56:52 GMT

Just now reading this, and here's a reply from someone with no pretense to having legal knowledge, but as someone who's gone through a lot of divorce-related stuff.

How big is the debt? And it's a medical debt, right? Although it's certainly not a cast-iron guarantee, your odds of getting a medical debt collector to cease reporting the collection if you pay (this is called PFD, or pay for delete) is way higher than for other collection types. Also, in some cases, you can get the original creditor (doctor, emergency room, whatever) to accept payment directly to them in exchange for them pulling back the collection and wiping the whole thing from your reports.

Is it right that you should have to pay for your not-quite-ex-wife's debts? Probably not. if doing so results in a clean credit report for you, and no more hassles in the future from collectors? You're going to have to figure out your answer to that, and it will vary for everyone.

It's really common in divorces to get into a mind-set where you want the other party to pay for --or really, to simply acknowledge --their bad behavior during the marriage. On some level, we all seem to want a public acknowledgement from those who have wronged us, but realistically, this rarely happens. Wanting to make this happen can result in some counter-productive behavior, aka, cutting off your nose to spite your face. Now that the divorce is (presumably) final, she can't hit you with any new debts, so there might be something to be said for paying this one off (IF you can get them to agree IN WRITING to delete all reporting about a collection in exchange for your payment), if the figure isn't too huge. Just a thought. :)

Re: Anyone out there with knowledge of debt and divorce in Wisconsin (Community Property State)?

valley_man0505 — Fri, 21 Sep 2012 16:33:56 GMT

Hauling, thanks for the reply. Sorry it took me so long to see it. Unfortunately, I already tried all those things. Not only did they refuse to delete, they got downright nasty with me (a CA wouldn't have it any other way, after all) for even recommending it. Then, of course, they acted like they would be doing me a big favor by updating it as "paid" on my credit reports once I paid it. I also tried the OC route. They were more nice about it and sympathetic, but they would not do anything other than refer me to the CA.

This was actually the second wave of bills from this same surgery. The first wave totaled about $4,000 and these bills were all handled by a CA that agreed to a PFD. Appartently, the pathology and anesthesiology lab use a different billing department and a different CA than the rest of the hospital, however, and the ones I am currently having problems popped after the PFD with the first CA.

When I told this new CA that a different CA let me PFD for bills involving this same surgery, they said that this was against the law so there was no way any CA would do that. Then they pulled the "I've been doing this for 25 years and know way more about debt collecting and credit reporting than you could ever hope to know, so I don't know how you expect me to believe that any agency would violate the law for you. You are obviously lying". It became clear at that point that there was no sense in even attempting to contact them about anything again. Two more years have now gone by and they have hired a couple of different local attorneys (the CA is a small local company as well) to send me threatening letters, but they have never filed suit.

It's pathetic business on their part, really. I would have paid this debt 2 years ago even though I shouldn't have to if they would have agreed to delete and everyone would have been happy. Instead, they will likely never get the money and I am stuck dealing with these two collections on my report for about 3 more years (unless, of course, the Medical Debt Responsibility Act of 2012 would ever gain traction this year, or when they likely reintroduce it next year, or maybe the year after will be the magic year--of course it will probably finally pass right after these debts are gone anyway...arrggh!).