The Surprising Benefits: Discharge Divorce Property Settlement Debts
Sept. 3, 2018
Chapter 13 enables you to discharge—legally write off—some or all of any non-support debts included in your divorce. Chapter 7 does not do this.
“Discharging” a Debt or Legal Obligation
When you successfully complete a consumer bankruptcy, you get a discharge of some or all of your debts. When a debt is discharged the creditor is legally forbidden to take any action “to collect, recover or offset any such debt.” See Section 524 (a)(2) of the Bankruptcy Code. The debt has become legally uncollectible. So, one of your main goals in bankruptcy is to discharge all your debts, or as many debts as the law allows.
Chapter 7 vs. Chapter 13 Discharge
Chapter 7 “straight bankruptcy” discharges most debts. But there are exceptions.
Some debts you may want to continue paying and don’t want to discharge. One reason may be because you want to keep the collateral securing that debt. So, for example, you might legally agree to continue paying your vehicle loan in order to keep that vehicle.
Certain other debts the law does not allow to be discharged. Examples include child and spousal support, many student loans, and recent income taxes.
The kinds of debts that a Chapter 13 case does not discharge are mostly the same kinds as under Chapter 7. These include the kinds mentioned above. You can voluntarily pay a vehicle loan under a Chapter 13 “adjustment of debts” case. (Plus you may well get some extra advantages). And Chapter 13 does not discharge child and spousal support, many student loans, and recent income taxes. (Again, you may well get some major advantages under Chapter 13 in dealing with these special debts.)
However, there IS a significant kind of debt which Chapter 7 does not discharge but Chapter 13 does. These are non-support divorce debts. As a result you should consider Chapter 13 instead of Chapter 7 if you have this kind of debt. This is especially true if you owe a significant amount of non-support divorce debt. Chapter 13 would likely enable you to pay little or even none of your non-support divorce debts. If you either didn’t file bankruptcy or filed under Chapter 7 you’d be required to pay them in full.
What Are Non-Support Divorce Debts?
What we’re calling divorce debts are those financial legal obligations that arose out of your marital divorce. These can also come through separation decrees and other family court proceedings.
Non-support divorce debts are simply divorce debts not involving the payment of spousal or child support.
Most non-support debts are those obligations in your divorce decree related to the division of property and the division of debts between you and your ex-spouse.
The Division of Property
Your divorce decree may divide the marital assets in a very straightforward way. At the end of the divorce both of you could be in possession of what you’ve been awarded—all done.
But often in a divorce one ex-spouse receives less assets than the other. For example, you may receive a vehicle worth much more than your ex-spouse. Or you may get the family home. So you’re required to pay your ex-spouse half of the equity in the home to make up the difference. Whatever specific amount you’re required to pay in these kinds of situations is a non-support marital debt.
The Division of Debts
Also, for whatever reason your divorce decree may have required you to pay a debt arising from the marriage. This debt may be a jointly-owed one, one that you owe individually, or even one that only your ex-spouse owes. The decree orders that your ex-spouse no longer has to pay that marital debt. You have to pay it by yourself.
This provision in the decree creates a new and separate obligation by you to your ex-spouse to pay that debt. This is over and beyond whatever obligation you may have had (or not had) already directly to the creditor.
This obligation to your ex-spouse to pay the debt is a non-support marital debt.
Discharged Only Under Chapter 13
Chapter 7 case simply does not discharge these non-support debts.
You’d continue to owe any obligation to pay your ex-spouse money for division of marital property. You would continue to owe any obligation stated in the divorce decree to pay a marital debt. This would be true even if you could discharge the debt to the direct creditor.
However, both division-of-property and division-of-debts obligations to your ex-spouse (and any other non-support divorce debts) could be discharged in a Chapter 13 case. So, again, if you owe non-support divorce debts you should look into Chapter 13 with your bankruptcy lawyer.
But Chapter 13 isn’t necessarily your best option if you have a non-support divorce debt. Chapter 13 has disadvantages, both of itself and in how it treats non-support obligations in particular. We’ll get into these next week. Then you’ll begin to see whether Chapter 13 really is the better solution for you.