Legal Updates

How Divorce & Bankruptcy Intersect

Divorce and bankruptcy are both challenging life events, and they often intersect in ways that can significantly impact your financial and legal situation. If you’re considering or currently going through either, it’s important to understand how they might affect each other.

1. Timing is Key.  One of the biggest questions is whether to file for bankruptcy before or after divorce. Filing jointly before divorce may save money and streamline the process by addressing joint debts together. However, individual circumstances—like income and property—may influence the best approach.
2. Joint Debts & Responsibility.  Divorce settlements often divide responsibility for debts, but creditors don’t honor those agreements. If your ex-spouse fails to pay their share, creditors can pursue you. Bankruptcy can provide protection from this risk by discharging those debts.
3. Types of Bankruptcy & Divorce.  Chapter 7 bankruptcy is quicker, often completed in a few months, which may be a more attractive chapter if you’re divorcing soon (that is, if you qualify for Chapter 7 bankruptcy!).  Chapter 13 bankruptcy involves a repayment plan over several years, which will require your divorce attorney and bankruptcy attorney’s expertise and collaboration to navigate the two proceedings.
4. Protecting Assets.  Bankruptcy and divorce both involve the valuation and potential division of assets. Understanding how exemptions work in bankruptcy can help protect essential property, like your home or car, during the divorce process.
5. Domestic Support Obligations are Non-Dischargeable.  Domestic Support Obligations, like alimony and child support, are not dischargeable and cannot be eliminated in a bankruptcy proceeding. If you are ordered to pay domestic support, these debts remain your responsibility regardless of whether you file for Chapter 7 or Chapter 13 bankruptcy.
6. Joint Debts & Responsibility.  Divorce settlements often divide responsibility for debts, but creditors don’t honor those agreements. If your ex-spouse fails to pay their share, creditors can pursue you. Bankruptcy can provide protection from this risk by discharging those debts.
7. The Automatic Stay is Limited in Divorce.  The automatic stay under Section 362 of the Bankruptcy Code, which halts most collection actions, does not typically apply to many divorce-related matters. For example, proceedings related to child custody, domestic support obligations, or marital status can continue. The stay primarily applies only when disputes involve assets of the bankruptcy estate.
8. Legal Guidance Matters.  Every situation is unique. Consulting both a divorce attorney and a bankruptcy attorney ensures you’re making informed decisions that protect your rights and future.

If you’re facing the complexities of divorce and bankruptcy, our experienced team is here to help. Contact us for personalized guidance to navigate these challenges with confidence.

By: Christina Vilaboa-Abel, Esq.