Imagine agreeing in your divorce that your former spouse will pay certain debts. Years later, collection notices arrive because that person filed for bankruptcy. Whether you are stuck with the bill depends on three questions: What kind of debt is it? Who legally owes it? Which type of bankruptcy was filed?
The Bankruptcy Code treats qualifying alimony, maintenance, and child support as domestic support obligations, and another provision generally bars discharging, or erasing, them. Substance matters more than labels, so how a payment is described does not settle the question. In In re Evert, a pre-2005 decision, the Fifth Circuit looked to the parties’ intent when they made their agreement to decide whether a payment was support or a property settlement.
In Chapter 7 cases, a Bankruptcy Code provision generally keeps non-support divorce debts owed to a former spouse from being discharged. In Kinkade v. Kinkade, a husband owed his wife $43,675.50 under a divorce judgment for money she had lent him. The Fifth Circuit held the debt could not be discharged, rejecting his argument that the rule covers only marital debts.
Chapter 13 can also differ. Once a debtor finishes the repayment plan, the discharge section does not carry over that same protection, so some property settlement debts may be dischargeable. Hardship discharges follow different rules, and because Kinkade was a Chapter 7 case, it should not automatically govern a completed Chapter 13 plan.
Suppose your decree orders your ex to pay a joint credit card, and your ex then files. The lender may still pursue you if your name is on the account. Federal law says a discharge does not erase anyone else’s liability for the debt. The decree may give you a reimbursement claim.
Filing starts an automatic stay, which pauses most collection efforts. But the Bankruptcy Code exempts certain family-law proceedings and support collection. Disputes over discharging support or property settlement debts skip the 60-day fraud deadline, but proof-of-claim and plan-objection deadlines still apply.
At O’Brien Law Firm, LLC, we can review your decree, separate support from property settlement debts, and help you respond. To get started, contact us or call 662-672-7619.
