Bankruptcy doesn't absolve spousal support payments

To Her Credit columnist Sally Herigstad
Sally Herigstad is a certified public accountant and the author of "Help! I Can't Pay My Bills: Surviving a Financial Crisis" (St. Martin's Press, 2006). She writes "To Her Credit," a weekly reader Q&A column about issues involving women, credit and debt, for, and also wrote for MSN Money, and, and has guested on Martha Stewart Radio and other programs.

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Question for the expert

Dear To Her Credit,
What happens when your ex-husband, who is currently giving you alimony, files for bankruptcy? How does his filing of bankruptcy affect your alimony? Will he get out of paying spousal support? -- Ana

Answer for the expert

Dear Ana,
If your husband hopes he can get out of paying you alimony by filing for bankruptcy, he's going to be very disappointed.

New York bankruptcy attorney Edward E. Neiger says, "Child and spousal support, including child support and alimony, are not dischargeable in bankruptcy."

In fact, under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, back child support and alimony must be paid before any other creditor, including taxes owed. That's pretty amazing, but it shows the importance placed on financial support for ex-spouses and children and acknowledgement of the cost to society if that support is not received.

Just because alimony is not dischargeable, however, doesn't mean you should sit back and wait to see what happens. Neiger recommends that you file a "nondischargeability complaint" to make sure your interests remain protected.

Because you are a holder of a domestic support obligation claim, the trustee in the bankruptcy is required by law to notify you -- and your state's Child Support Enforcement Agency if applicable -- of the bankruptcy proceedings. You should get two notices: one at the time of filing and another at the time of the bankruptcy discharge.

To make sure you get what's coming to you, you can hire a lawyer, or you may qualify for low-cost or free legal advice where you live. When it comes to collecting the money you live on, don't try to save money by going without good legal advice.

If your ex doesn't have enough assets that the bankruptcy court can use to pay the back alimony, you may have to accept catch-up payments. Your lawyer or other legal adviser can help negotiate the amount per month he must pay, as well as how he will make the payments.

After the bankruptcy, assuming your ex has a loss of income or other drastic change in circumstances from when the divorce was settled, he may try to get hardship relief from full alimony payments going forward. He must go through the courts to get such relief unless your decree had some provision for income fluctuations and periods of unemployment.

In most states, your ex could get an alimony modification by either petitioning the court and having the court determine the new amount, or by coming to an agreement with you and presenting filled-out forms to a judge to approve. Get good legal advice before you agree to any adjustment to your divorce decree.

If your ex files for bankruptcy, it may actually work in your favor. If some of his assets are liquidated in the bankruptcy, you may get paid off. And once he gets rid of some of the other debts he's been juggling, he should find it easier to pay you.

On the other hand, maybe when your ex finds out how many of his debts won't be wiped out by bankruptcy, he'll decide it's not even worth it. In addition to child support and alimony, he will find that bankruptcy generally does not get him out of back taxes, student loans or debts secured by assets. Whenever possible, it's better to just pay one's debts. Make sure your ex pays his debt to you.

See related: Comparing desperate options: bankruptcy vs. debt negotiation, Credit card glossary terms to know for bankruptcy, Avoid bankruptcy during messy divorce

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Updated: 01-24-2019