15 Sep Can My Ex-Spouse Use Bankruptcy to Discharge Debts Arising from a Divorce Order?
From time to time I receive emails from men or women who have gone through a divorce and whose ex-spouse has filed a bankruptcy. They usually want to know if their ex-spouse’s bankruptcy can eliminate obligations set out in a divorce order.
In general, Bankruptcy Code Section 523(a)(5) and 523(a)(15) except from discharge debts arising from a divorce or support order. In other words, a non-custodial father’ s child support obligation cannot be eliminated or modified in bankruptcy.
I have, however, been involved in cases where a non-custodial parent’s past due child support obligations have been repaid – in full – as part of a Chapter 13. I suspect, however, that if the custodial parent objected to getting paid this way, he/she would have a strong argument to object to the confirmation of the non-custodial parent’s Chapter 13 plan.
Less clear are situations involving property division. Prior to 2005, the Bankruptcy Code treated alimony and support in a fundamentally different way from property division. In a less than eloquent fashion, the Code has been modified to seemingly treat all domestic relations related debts like support and alimony but there may be some wiggle room.
If you are a custodial parent and your ex-spouse has filed bankruptcy, you will be listed as a creditor. In such a circumstance, I suggest that you invest a few dollars to speak with counsel to determine if you need to file any paperwork to preserve your rights. The relationship between bankruptcy and divorce/domestic relations debts is an uneasy one and the trend in the law has been to protect family law debts from discharge but bankruptcy courts and state courts are still struggling with exactly how to deal with bankruptcy filings.
Jonathan Ginsberg, Esq.
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