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TJ, Esq.
TJ, Esq., Attorney
Category: Bankruptcy Law
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Experience:  JD, MBA
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I am going through a difficult divorce where neither myself

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I am going through a difficult divorce where neither myself nor my spouse can pay for our current debts. On top of this I just found out that he is planning on trying to get me to pay for his legal fees. If I file bankruptcy during the divorce, before debt assignment can this not only clear me of my obligation to any debt but prevent them from trying to get me to have to pay his legal fees?

Hello and thank you for allowing me the opportunity to assist you.

Bankruptcy can relieve you of liability for your debts. Therefore, your creditors would not generally be able to go after you for payment. However, the Bankruptcy Code specifically states that domestic support obligations are excepted from discharge, which basically means that you’d still owe such debts after bankruptcy. Domestic support obligations obviously cover things like alimony and child support, but the courts have liberally construed that provision in the law to mean almost any obligation stemming from a divorce. Therefore, if the judge orders you to repay a certain debt so that your spouse does not have to pay it, then that is considered a domestic support obligation and will it will not be discharged. That can definitely pertain to legal fees.

If the information that I provided is helpful, then please remember to click the green accept button so that I will receive credit and compensation for my time. Positive feedback is always appreciated as well. Thank you and good luck!

DISCLAIMER: Please be aware that only an attorney licensed in your state is authorized to advise you in legal matters, and that the limitations of this setting may prevent your legal issues from being thoroughly addressed. Accordingly, please understand that (1) by answering your question(s) I am not acting as your attorney, (2) my answer(s) should be construed as general information only, and (3) our discussion is not an adequate substitute for an in-person consultation with an attorney.



Edited by TJG, Esq. on 1/4/2011 at 9:09 PM EST
Customer: replied 6 years ago.
So even if I file now, before we have even gotten to debt assignment or possible legal fees, the judge could order me to pay these debts? Even if the federal bankruptcy court has discharged me from them?

Hi again.

You framed your follow up question as though the divorce judge can ignore the Bankruptcy Code, but that’s not what would happen. The Bankruptcy Code does not discharge you from domestic support obligations (or other debts owed to a spouse in connection with a divorce). Here’s the law:

§ 523. Exceptions to discharge

(a) A discharge under section 727, 1141, 1228 (a), 1228 (b), or 1328 (b) of this title does not discharge an individual debtor from any debt—

(5) for a domestic support obligation;

(15) to a spouse, former spouse, or child of the debtor and not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a governmental unit;

If you were to file for divorce now before the judge orders you to pay the attorney fees, then the bankruptcy wouldn’t even come into play because it only discharges debts owed when the bankruptcy is filed … not debts incurred after the bankruptcy is filed. If you wait to file for bankruptcy after the judge orders you to pay the attorney fees, then the aforementioned bankruptcy law comes into play, which specifically states that domestic support obligations (and other debts owed to a spouse in connection with a divorce) are not dischargeable.

I regret that my answer is unfavorable, but please understand that it would be unfair to you (and unprofessional of me) to provide you with anything less than a truthful response. With that in mind, I hope that you found value in my answer. If so, then please remember to click the green accept button so that I will receive credit and compensation for my time. Positive feedback is always appreciated as well. Thank you and good luck!

DISCLAIMER: Please be aware that only an attorney licensed in your state is authorized to advise you in legal matters, and that the limitations of this setting may prevent your legal issues from being thoroughly addressed. Accordingly, please understand that (1) by answering your question(s) I am not acting as your attorney, (2) my answer(s) should be construed as general information only, and (3) our discussion is not an adequate substitute for an in-person consultation with an attorney.

TJ, Esq. and other Bankruptcy Law Specialists are ready to help you

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