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Family Law/Bankruptcy FAQ's

Bankruptcy and support claims

The Bankruptcy Code attempts to protect the rights of children and former spouses to collect support:  whether it is called family support, alimony, or child support, the bankruptcy code makes it non dischargeable in bankruptcy.   The recipient spouse does not have to do anything for the debt to be excluded from the discharge.

The automatic stay, which stops other court proceedings when a bankruptcy is filed, does not apply to actions to establish or modify a support order or to collect support from post petition wages.

Wage orders that deduct current support from the debtor's wages are not generally affected by the bankruptcy filing.  Wage orders that collect past due support arguably are stayed in Chapter 7 and certainly stayed in Chapter 13.

Also, support is a priority claim for purposes of payment from the estate.   Thus in a Chapter 13, payment of past due support is paid before unsecured creditors, and even before taxes. The recipient spouse must file a proof of claim to receive payment.  Chapter 13 frequently works well for both the paying spouse (who is protected from other creditors while paying back support) and for the recipient spouse ( who gets regular payments from the trustee made by the debtor voluntarily).

Bankruptcy and the division of property and debts in a pending divorce

The issues raised when one spouse in a divorce action files bankruptcy are complex and vary somewhat depending on the property and family laws of the state.  

In general, the filing of a bankruptcy stops all court proceedings against the debtor;  brings into the bankruptcy estate all property of the debtor and all community property of the debtor and his spouse;  and upon entry of a discharge, relieves the debtor of personal liability for all dischargeable debts.   

The family court cannot assign marital debts to the debtor after he has received a discharge and cannot make orders dividing the property of  the debtor while the property is property of the estate.  The family court can divide the property that the debtor exempts;  after the exemption is allowed, that exempt property is no longer property of the estate.  

The family court can continue to hear and decide issues relating to fixing support. Some courts will require an order from the bankruptcy court, specifically finding that motions to establish or modify support are outside the bankruptcy stay. See Relief from stay.

If you become involved in such a proceeding, get advice from an experienced bankruptcy lawyer.  Find a lawyer.

Bankruptcy and enforcement of marital settlement agreements

The 2005 amendments to the Bankruptcy Code recently made non support obligations created in connection with a divorce or separation nondischargeable in Chapter 7 without any action on the part of the non debtor spouse. 11 U.S.C. 523 (a)15.  Those same obligations are dischargeable in a Chapter 13.

Effect of listing a marital debt on the schedules

Just because a creditor is listed by the debtor on the bankruptcy schedules does not make the creditor's claim dischargeable.  The debtor is required to list all debts on the schedules, even debts that are acknowledged to be non dischargeable.  So, listing a debt to a spouse or former spouse does not show either an intent or perhaps the power to discharge the debt.

The dischargeability of the debt depends on the nature of the debt (support, property division, lien for equalizing payment, etc.).  Support is non dischargeable without action on the part of the receiving spouse.  

If you know about the bankruptcy, whether from the court or through the grapevine, you are charged with finding out what is going on and taking steps to protect your interests, if necessary.  

More on divorce and bankruptcy

Bankruptcy basics


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