May 21st, 2013

Bankruptcy and Divorce Part II: You May Still Be Liable to Your Ex For Debt Payments

In my article Bankruptcy and Divorce Part I, I mentioned that creditors could care less about what is in your divorce decree. If you agreed in your decree to be responsible for the American Express debt, your car loan and the home equity line of credit, those creditors can still collect from your ex if those debts were incurred during your marriage. This is true even if those debts were only in your name.

Chapter 7

If you file bankruptcy with respect to debts incurred while you were married, those creditors will definitely be motivated to come after your ex because the creditors can no longer collect from you. An experienced Arizona bankruptcy lawyer will advise that Chapter 7 will not discharge your obligation to your ex to pay for the debts you promised to pay in your divorce decree.

For example, assume you agreed to pay the American Express bill in the divorce decree. You file Chapter 7. Your bankruptcy discharge prevents American Express from collecting against you. American Express now sues your ex because it was a debt you incurred while you were married (a community debt). Your ex can still drag you into that lawsuit and sue you himself because you promised to pay that debt in your divorce decree. He can do this even after you receive your Chapter 7 discharge!

Chapter 13

It’s different under Chapter 13. If you file Chapter 13 and make all of your payments, you will receive a Chapter 13 “super discharge” that also discharges your promises in your decree to your ex to pay for certain debts. Therefore, in the example above, if you receive a Chapter 13 discharge, he will not be able to sue you under the divorce decree if American Express comes after him.

Unpaid Support is Never Discharged

Note that your unpaid alimony or child support is never dischargeable in any bankruptcy. In a Chapter 13, you are permitted to come current with all support left unpaid as of the Chapter 13 ¬†filing date. You will make monthly Chapter 13 payments for up to 5 years that will be used to pay the support arrearages. Don’t forget, however, that on top of that Chapter 13 payment, you are still required to stay current on all regular monthly support payments that come due after your Chapter 13 filing date.

Tags: , , ,

Add a Comment