I was asked today if attorney’s fees awarded in divorce (family law) court to the other spouse’s lawyer can be eliminated (discharged) in a bankruptcy case.
The answer is: It depends.
In general, domestic support obligations, which are those obligations issued for the maintenance or support of a former spouse or child, including alimony, are not dischargeable in any bankruptcy case.
So the key element is determining if the type of debt is for alimony, maintenance or support of a child or spouse. This is not always clear from the divorce decree or other family law order.
Marital equalization obligations, such as those where an award is made against one spouse to offset assets being given to the other, are generally not considered for support or maintenance. Similarly, attorney’s fees awarded to the other spouse’s lawyer is likely not for support or maintenance.
Debts incurred as part of or in connection with a divorce decree or separation which are not for the alimony, support or maintenance of the spouse or children may be dischargeable in a Chapter 13 bankruptcy case, but not in any other chapter.
Thus, the key is determining whether the debt in question is for the support or maintenance of the spouse or child, and which chapter of bankruptcy is involved.
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