If my wife is filing for bankruptcy, how do I protect the money she owes me from being erased with all of her credit card debt?

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If my wife is filing for bankruptcy, how do I protect the money she owes me from being erased with all of her credit card debt?

My ex-wife owes me $25k as written out in our divorce decree. In total, she is now $100k in debt and filling for bankruptcy. Since I am one of her creditors, I received a letter in the mail today telling me I need to defend the debt she owes or it will be forgiven.

Asked on May 29, 2012 under Bankruptcy Law, California

Answers:

Kenneth Berger / Kenneth A. Berger, Attorney at Law

Answered 8 years ago | Contributor

I would need quite a bit more information to give specific advise to you regarding this, but let me explain the basics.  There are different types of marital debts and they are often treated differently.  The type of bankruptcy she filed would make a difference too.

Section 523 of the bankruptcy code defines which debits can be discharged in a Chapter 7.  Section (a)(5) excepts from discharge "domestic support obligations".  Section (a)(15) excepts from discharge a debt to "a former spouse ... not of the kind in paragraph (5) that is incurred by the debtor in the course of a divorce ... dirvorce decreee or other order of a court of record...."  So, in a chapter 7, if you have to pay on a debt that your ex-spouse should have paid under your decree, you would likely have a claim to obtain a federal judgment for reimbursement in an adversarial proceeding conducted during her bankruptcy.

The discharge available in a chapter 13 is set forth in section 1328 of the bankruptcy code.  Subsection (a)(2) excepts domestic support obligations, the same as a chapter 7, but has no equivalent exception as 523(a)(15).

The term Domestic Support Obligation is defined in section 101(14) of the bankruptcy code and generally refers to child support and maintnenance (aka alimony).  Property division debts are not considered Domestic Support Obligations. 

So in a chapter 13, only child support and maintence is generally excepted from discharge.

Bankruptcy law is complicated, so I hope this helps.

 

As always, my comments are only applicable to Washington State and are not a substitute for getting competent, local, and more comprehensive, legal help.

 

 


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