Should You File for Bankruptcy or Divorce First

Money and finances can create some of the largest disagreements within a marriage. Oftentimes, division among finances can actually be the catalyst to a divorce. Struggling financially can cause irreparable marital problems. If you are considering a divorce, but are also struggling financially, you may also be contemplating filing for bankruptcy. You may have questions regarding if you can file for bankruptcy without your spouse, or whether you should file for bankruptcy or divorce first. Every circumstance is unique, and visiting with an experienced family law attorney can help you make the best decision for your specific situation.

Filing for Bankruptcy First  

If you are suffering from financial difficulty, you may be wondering if you can file for bankruptcy before divorce in order to stop the collection calls and eliminate some of your debt. However, you may be curious if filing for bankruptcy first will affect the divorce in any way, such as whether it will impact either child support or alimony.

When you file for bankruptcy, unless you specifically file jointly with your spouse, it is a personal financial matter, even if you are still married. Bankruptcies affect only your financial debt and your personal credit score. Spousal consent is not required to file for bankruptcy. However, if you file for bankruptcy before a divorce, it may make your divorce more challenging and complicated. If you file for bankruptcy before filing for divorce, the court will likely impose an “automatic stay” on your finances and therefore any property determinations in your divorce

Filing for Divorce First

If you choose to file for divorce before bankruptcy, the financial aspects of the divorce will likely be a smoother process. However, it is important to note that if you file for bankruptcy after a divorce, your child support and alimony payments will not be dismissed in any type of bankruptcy. These are considered legally binding financial obligations and will not be altered due to the declaration of bankruptcy. Child support and alimony are specifically addressed in Section 523(a)(5) of the Bankruptcy Code, and under the law, you will be unable to remove yourself from the responsibility to pay these debts. If a Best Interest Attorney was appointed in your case, you will also not be able to discharge their court ordered legal fees. 

Filing Bankruptcy In The Middle of a Divorce 

You also have the option of filing for bankruptcy during the divorce process. While this is possible, it will place the entire divorce process on hold until the bankruptcy court gives the divorce court permission to proceed regarding financial issues. This can delay the resolution of a divorce substantially and affect the division of property assets including the marital home, retirement income, cash, or other investments. If you are considering both bankruptcy and a divorce, consulting an experienced family law attorney can help you make the best decision in your circumstance.

Contact an Experienced Family Law Attorney

If you feel overwhelmed by both financial debt and the possibility of a divorce, you likely have some challenging financial decisions to make. Let us help you determine your legal rights and how best to proceed regarding your unique situation. Contact our experienced Prince Frederick divorce attorneys serving Southern Maryland at Meng Law at 410-449-1647 or online today.

Resource:

uscourts.gov/services-forms/bankruptcy/bankruptcy-basics/chapter-7-bankruptcy-basics

https://www.menglaw.com/social-media-behavior-to-avoid-during-your-divorce/