Divorce, Bankruptcy & Shared Property
When divorce or another life crisis pushes you to file for bankruptcy,
it can just add stress to an already stressful situation.
Divorce is one of the major reasons people cite as to why they had to
file bankruptcy.
When you’re suddenly responsible for paying alimony and/or child
support, it can take a big toll on your finances.
If you’re thinking about filing bankruptcy, you’re probably wondering
how your property may be affected. Read on to learn more about divorce,
bankruptcy and property.
Property in Divorce:
Division of Debts and Assets
As you may already know, part of your divorce settlement will involve a
distribution of your debts and assets between you and your spouse.
The division of these debts and assets will depend on a number of
factors, which can include:
- Your state’s divorce laws: The laws where you live (either
community property or equitable distribution laws) will play a role in
how your property is divided.
- Generally, community property states call for an equal
division of property between spouses and equitable distribution takes
into account a variety of factors to determine division.
- Length of your marriage: The length of your marriage will
likely play a role in who gets what when you split. Usually, the longer
a marriage, the more equally distributed marital property is.
- Presence of prenuptial agreements: Not all courts will
recognize the validity of prenuptial agreements (and post-nuptial
agreements), but if yours adheres to all appropriate regulations, and
your state recognizes them, this could influence the division of
property.
Keep in mind, your state divorce and bankruptcy laws may consider other
factors.
For this reason, it’s a good idea to consult with a divorce or
bankruptcy lawyer about your specific case and learn about the laws in
your state.
Property in Bankruptcy:
Exemptions
The amount of your personal property may help you determine which
chapter of personal bankruptcy (Chapter 7 or Chapter 13) may best suit
your needs.
- Chapter 7 exemptions: Chapter 7 bankruptcy was designed to
offer the discharge of many types of unsecured debts.
- Some Chapter 7 cases also include a liquidation sale where
the filer’s trustee sells the filer’s non-exempt property to repay
creditors. This means that if you have many possessions not exempted by
your state, you risk losing them if you file under Chapter 7.
- If you have secured debts and file Chapter 7, you can
choose to redeem them (by paying the full amount you owe), renew them
(by agreeing to continue making payments) or surrender your property to
your creditor (and be free of the debt).
- Chapter 13 repayment plans: Chapter 13 bankruptcy allows
filers to catch up on late debts while staying current on other debts.
If you have significant property that isn’t exempt under your state’s
laws and you’d like to hang on to that property, Chapter 13 will
probably allow you to keep them and catch up on payments you owe. Many
people facing foreclosure or repossession find that Chapter 13 can help
them.
Responsibility for
Discharged Debts
It’s important to note that the designations of the divorce court do
not apply to the bankruptcy court.
This can have very specific consequences for your case if you and your
spouse have (or had) joint debt.
For example, if your spouse is responsible for a debt in your divorce
settlement, then he or she files bankruptcy, the court may not
discharge the debt because another borrower is capable of paying it
(you!). That means the debt could land on your shoulders.
For this reason, it’s important that you contact your ex-spouse if you
plan on filing for bankruptcy after a divorce.
If either of you is considering bankruptcy before a divorce, it can be
a good idea to explore all your options (joint or single filing,
Chapter 7, Chapter 13, etc.) with the help of a local bankruptcy lawyer.
For advice on
bankruptcy after divorce,
visit
www.totaldivorce.com
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