Once a Californian divorce is finalized and the court has issues its order obligating an ex-spouse to pay child and spousal support, ex-couples can finally breathe freely. But, then one receives a notice that says their former spouse has filed a petition under Chapter 7 of the federal Bankruptcy Code, asking the court to declare those child and spousal support obligations no longer binding. Is this possible? The person likely wonders whether they have endured the pain of divorce for nothing. The answer lies in the provisions of the Bankruptcy Code, and the answer is positive.
Chapter 7 is intended to allow the debtor to shed most debts by surrendering his (or her) property to the bankruptcy trustee and selling that property to provide funds to pay existing debts. Any debts that are not paid are then discharged — declared by the court to be uncollectible. If this provision applied to either child support or alimony, a person could defeat the ruling of the divorce court by filing a bankruptcy petition. Fortunately, Congress decided not to permit such an obvious ploy.
The Bankruptcy Code enumerates several types of debts that cannot be discharged. Among debts included on this list are taxes, debts not listed by the debtor and amounts owed for spousal support and child support. Even if a person who owes child support or alimony lists those obligations on a Chapter 7 petition, those debts cannot be discharged.
In most cases, the bankruptcy court will not even consider the request to discharge child support or alimony obligations, but retaining an experienced divorce attorney to monitor the situation may be advisable. A knowledgeable attorney can follow the progress of the bankruptcy, file any necessary objections and ensure that alimony and child support are not included in the order for discharge.
