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How long after I file bankruptcy can my divorce be finalized?
My husband and I are considering filing a Chapter 7 bankruptcy to deal with mounting debts. We are also considering filing for divorce. Will a bankruptcy interfere with the divorce becoming finalized?
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Answers
Bankruptcies usually take precedence over divorces, so it is always prudent to file for bankruptcy before you file for a divorce. Note that income is looked at differently in bankruptcy court than it is in divorce court. Bankruptcy courts will have to determine what is singular debt or community debt. Community debt will survive the divorce and both parties. will remain responsible.
If you proceed with the divorce first, note that debts related in a divorce property settlement are presumed non-dischargeable in bankruptcy, which means these debts will not be wiped out. However, if those declaring bankruptcy can show an extreme financial burden which inhibits them from taking care of themselves or any dependents, the court may choose to extinguish debts in those cases.
Note that since October, 2005, the laws declare that any obligation between ex-spouses such as spousal or child support can no longer be extinguished through a subsequent bankruptcy. Bankruptcy courts will attempt to distinguish what debts constitute support and what debts are part of a divorce property settlement. They will look at such factors as whether there are any minor children, whether there was a need for support at the time of the divorce, and whether the obligation is reduced or terminated with an event such as remarriage or a child's turning 18. Therefore, when you draft a property settlement, you may want to word it to look more like support than just a property settlement.
Again, filing bankruptcy before filing for a divorce simplifies divorce negotiations as some or all of your debt will no longer be at issue. Filing for joint bankruptcy can especially simplify divorce transactions for the same reason. Also note that if your divorce is uncontested regarding property, the divorce can be finalized before the bankruptcy proceedings are cleared through.
If you file for Chapter 7, the bankruptcy should be completed in 90 days. If you choose to file Chapter 13, both you and your ex-spouse will be responsible for any subsequent payment plan.
Check with a divorce attorney who is also experienced with the bankruptcy laws in your state to determine your rights in this matter.
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Posted by Sharon Cullars on 04 May 2010
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