Things to consider about Bankruptcy and Divorce

Should you file before or after divorce? 

This is a question many divorcing couples ask and the answer depends upon what joint assets and debts you have and what assets you intend to keep after the divorce. For most couples, this question is answered by whether or not you own a home, have equity in it, and one of you intends to keep it and who is residing in the home. In most cases, it is advisable to file bankruptcy jointly before the divorce. You should always consult with an experienced bankruptcy attorney when you first consider divorcing. Most often it is better to jointly resolve your debt issues before the divorce as it is one major component of divorce that can be quickly resolved and leave one less issue to argue over.

It is always best if both spouses can work together before the divorce is filed. It is important to rationally discuss the financial issues and come to a joint decision when possible. When communication breaks down and the parties cannot discuss matters together it often hurts both parties. An experienced bankruptcy lawyer should be able to discuss this with both spouses and make a recommendation that is in both parties interests.

Bankruptcy, child support and alimony.

Generally speaking, as a matter of public policy, both child support and alimony are not dischargeable in bankruptcy. However, by filing Chapter 13, a spouse obligated to pay support can pay the past due support in their chapter 13 bankruptcy plan and pay them over three or five years. Also, having the other debts discharged in bankruptcy and having one lower monthly payment can often make support payments more manageable.

Should you file bankruptcy jointly or individually?

The answer to this question depends mostly upon the nature of your relationship. For most divorcing couples, it is best to file jointly if at all possible; however, not every couple going through a divorce has the ability to work together on a joint filing.

Filing bankruptcy jointly means doubling your bankruptcy exemptions, increasing the amount of property and assets that can be protected in bankruptcy and from your creditors. If you own a home and one of you intends to retain it after the divorce, you can apply for the homestead exemption and protect the equity from your creditors.

If one of you files bankruptcy prior to divorcing and the other does not, the non-filer will be responsible for all joint debt that is discharged as far as their creditors are concerned. This often causes a problem for the spouse who did not file for bankruptcy and can become an issue in the divorce. The spouse who did not file will be responsible for the formerly joint debt.

Again, there are some instances where filing individually can be beneficial and you should always consult with an experienced bankruptcy attorney in the early stages of the divorce. Your divorce attorneys should work together with your bankruptcy attorney to achieve the best result.

The division of assets in a divorce and the effects on bankruptcy.

If you file bankruptcy after your divorce, the division of assets in your divorce property settlement agreement will control what assets you must exempt from your bankruptcy estate. Assets that you are to receive in the future may or may not be exempt. All of your assets provided for in the property settlement agreement must be disclosed in your bankruptcy petition. Also alimony and child support will count as income for the person receiving it and will count as an expense for the person paying it.