The Lingering “Super-Discharge” of Some Marital Debts

December 15, 2014 By: Carrie Weir

If you have financial obligations from your divorce or separation decree OTHER than to pay child or spousal support, those obligations may be dischargeable under Chapter 13 bankruptcy.

The Diminishing and Confusing “Super-Discharge”

Since the total overhaul of the nation’s bankruptcy laws way back in 1978, people filing for bankruptcy under Chapter 13 — the “adjustment of debts” payment plan — have been able to discharge — legally write off — more debts than those filing under “straight” Chapter 7. And although in the decades since then the law has steadily reduced the kinds of debts that can be discharged under Chapter 13, an important one still remains: non-support marital debts.
The ability to discharge divorce-related debts is a confusing area of bankruptcy law because there have been many significant changes over these last few decades. So some things that you may be hearing may have been true once, but are no longer.

The Current Law about Support and “Non-Support” Marital Debts

The bottom line is quite clear:

• Under Chapter 7 you CANNOT discharge ANY marital debts.
  • The Bankruptcy Code says you may not discharge any debt “to a spouse, former spouse or child of the debtor” arising out of a divorce, separation or marital property settlement. (See Sections 523(a)(5), 523(a)(15) and 101(14A) of the Code.)
• Under Chapter 13 you CANNOT discharge any child or spousal support debts, but you CAN discharge marital debts that are NOT support debts.
  • The Code says you may not discharge any debt “to a spouse, former spouse or child of the debtor” “in the nature of alimony, maintenance or support . . . of such spouse, former spouse or child of the debtor or such child’s parent.” But you can discharge debts arising out of a divorce, separation or marital property settlement other than those “in the nature of alimony, maintenance or support.” (See how Chapter 13’s Section 1328(a)(2) does not allow for the discharge of a Section 523(a)(5) debt — for “alimony, maintenance or support” — but allows for the discharge of Section 523(a)(15) debt — the non-support marital debts.)

What Are the “Non-Support” Marital Debts Dischargeable in Chapter 13?

These other debts and obligations that can only be discharged under Chapter 13 are generally described as the “property settlement” side of the divorce. These tend to be either money that you owe to your ex-spouse to make up for receiving more of the assets — for example, if you received the more valuable vehicle — or your obligation to pay certain either joint or separate creditor obligations so that your ex-spouse does not need to.

What Is and Is Not a “Support” Debt Is Not Always Clear

Support debts are defined as debts “in the nature of alimony, maintenance or support . . . without regard to whether such debt is expressly so designated.” In other words, your divorce decree may not label some obligation as “support,” but the bankruptcy court can still determine that it is “in the nature of support.” For example if you were ordered in the decree to pay half of your ex-spouse’s monthly rent and health insurance premiums for five years, and there was no mention of any spousal support payments where normally there would have been, the rent/health insurance obligation may well be considered “in the nature of support.”

Contact an Experienced Rockwall Bankruptcy Lawyer

To schedule a free, confidential consultation with an experienced bankruptcy lawyer in Rockwall, Texas, please call me at 972-772-3083 or fill out this form and I will contact you to schedule an appointment. I do my best to answer all calls, but sometimes I am in court or with another client. Please leave a message if I do not answer the phone, and I will return your call as soon as possible.