Which to File First: Bankruptcy or Divorce?
Financial stresses are a common part of the landscape of divorce. Many spouses seeking a divorce also have financial challenges, which may actually have contributed to the divorce. If you are considering a divorce and shouldeting severe financial burdens, you may wonder if you need to file for bankruptcy or divorce first, or if there are any legal consequences that may occur if you file for one before the other. If you feel confused regarding your options, understanding the reasons to file for bankruptcy or divorce first may help you make the best decision in your specific circumstance.
Bankruptcy or Divorce First?
If you are considering bankruptcy as well as divorce, you likely feel overwhelmed with questions. Which should you file first? Will it affect the other proceeding? Will it affect your spouse’s credit history? Will it affect your ability to receive alimony or child support? Some answers are listed below, but it is always a wise idea to visit with an experienced family law attorney to help you understand your legal rights.
- First, bankruptcies are individual matters and only affect the person who files. Therefore, even if you are married, your bankruptcy will only affect you unless you choose to file for bankruptcy jointly. Only your finances and credit score will be affected by the bankruptcy that you file. Additionally, this means that you do not need to receive your spouse’s consent if you wish to file for bankruptcy. If you choose to file for bankruptcy prior to divorce, there may be challenging legal issues to address. For example, an “automatic stay” may be placed on your finances as you go through the divorce if you have already filed for bankruptcy. Filing for bankruptcy prior to divorce could also affect your child support and alimony amounts.
- Divorce. If you choose to file for divorce first, and then a bankruptcy after the divorce is finalized, it is important to note that all of your assets will have been divided by the court, and a subsequent bankruptcy will not affect that legally binding court decision in any way. However, filing for divorce first will give you a clear picture of exactly the assets and debts you owe specifically which can give you a clearer picture of whether you need to file for bankruptcy at all.
Filing Bankruptcy in the Middle of a Divorce
Perhaps you have already started the divorce process and now realize that you may need to declare bankruptcy. There are financial circumstances that make this a necessity. If this occurs, the court will place the entire divorce process on hold until the bankruptcy is completed, in order to be able to provide an accurate division of property between the two spouses. The bankruptcy court will then give permission to the family court to proceed once the bankruptcy is completed. It is important to note that if you file for bankruptcy during or after a divorce, you will not be able to discharge the debts of child support or alimony. In fact, child support and alimony are non-dischargeable debts under Section 523(a)(5) of the Bankruptcy Code.
Contact an Experienced Attorney
If you are facing the decision to file for bankruptcy, divorce, or both, there are numerous legal considerations that will affect your finances. Contact an experienced attorney at the law firm of Giro Law at 201-690-1642 to help you understand your legal rights today.