While it is possible to file for divorce and bankruptcy at the same time, it can create unnecessary delays and complications in both matters. Which you should file first — bankruptcy or divorce — depends on your particular circumstances. But in general, it is best to wait until one matter is concluded before filing the other.
Planning can make both your bankruptcy and your divorce less complicated and more cost-effective. Whether you should file for bankruptcy before or after a divorce depends on where you live, how much property and debt you have, and what type of bankruptcy you wish to file.
Disadvantages of Filing for Divorce and Bankruptcy at the Same Time
When you file for bankruptcy, almost all property you own becomes the property of the bankruptcy estate. If you are in the middle of a divorce, the family court judge can’t divide and distribute your assets until your bankruptcy is completed. As a result, filing for bankruptcy during an ongoing divorce can drag it out unnecessarily. Similarly, unresolved alimony or child support issues can lead to delays in the processing of your bankruptcy case.
Should You File for Bankruptcy or Divorce First?
The answer depends on your individual circumstances. Filing a joint bankruptcy before a divorce can allow you to reduce court costs and attorney fees, simplify your divorce by discharging joint debts, and protect more of your property if your state allows you to double your bankruptcy exemptions by filing jointly.
In certain situations, it can also make sense to file for divorce first and then file for bankruptcy individually. If you maintain a single household and your joint income is too high to qualify for Chapter 7 bankruptcy together, you may be able to qualify individually after setting up separate households following the divorce. Also, if your divorce will include alimony or child support considerations, it can be helpful to have those amounts finalized before filing for bankruptcy.
- If a couple has joint debt, they may want to consider filing a joint bankruptcy petition to help eliminate or reduce their obligations. This is a common scenario before divorce is filed.
- You can save on attorney fees when you file bankruptcy first, especially if both spouses want to file for protection. Many couples save more when filing bankruptcy first instead of divorce as only one bankruptcy attorney will be needed.
- You should review potential drawbacks if you want to wait to file divorce. This may include spousal or child support delays. This is a common reason why some want to file bankruptcy and divorce at the same time.
- You may find it easier to have separate attorneys if you and your spouse decide to file divorce during bankruptcy proceedings. This ensures you receive proper legal advice as each process moves forward.
- Your combined median income may have an effect on eligibility for Chapter 7 bankruptcy (if you want debts wiped out). You can review whether it is best to file joint or individual petitions with your bankruptcy attorney.
- If bankruptcy is being considered by one spouse but the other spouse does not want to file, it may be best to complete the divorce first, unless an issue of significance such as foreclosure or wage garnishment is present.
Filing Together: A Joint Petition
A bankruptcy case starts when an individual, a married couple, or a business files official bankruptcy paperwork to the court. A married couple filing together will submit a “joint petition” containing the financial information of both spouses in one set of documents.
Divorcing couples often file together because it can be more efficient. For example, filing a joint petition comes with the following benefits:
- the bankruptcy will wipe out (discharge) the qualifying debt of both spouses, thereby reducing the issues to be decided in divorce court, and
- it costs less to file bankruptcy together as opposed to apart.
Married couples are not obligated to file together, however. If one spouse needs bankruptcy protection immediately, an individual filing might make sense. Or each spouse might find it easier to qualify for bankruptcy after the divorce due to a mutual drop in income. But when it’s feasible, many couples find that filing together streamlines the divorce process.
Bankruptcy and Divorce Costs
Bankruptcy filing fees are the same for joint and individual filings. For that reason, filing a joint bankruptcy with your spouse before a divorce can save you a lot of legal fees. Also, if you decide to hire a bankruptcy attorney, your attorney fees will likely be much lower for a joint bankruptcy than if each of you filed separately. However, you should let your bankruptcy attorney know about your upcoming divorce as there may be a conflict of interest for him or her to represent you both.
Filing for bankruptcy before a divorce can also simplify the issues regarding debt and property division and lower your divorce costs as a result.
Chapter 7 vs. Chapter 13 Bankruptcy
Chapter 7 bankruptcy is a liquidation bankruptcy designed to get rid of your unsecured debts such as credit card debt and medical bills. In Chapter 7 bankruptcy, you usually receive a discharge after only a few months making it possible to be completed quickly before a divorce.
By contrast, a Chapter 13 bankruptcy lasts three to five years because you have to pay back some or all of your debts through a repayment plan. So if you were looking to file a Chapter 13 bankruptcy, it might be a better idea to file individually after the divorce because it takes a long time to complete.
Chapter 7 and Chapter 13 bankruptcy offer different discharge options toward debt that a divorce decree obligates you to pay on behalf of your spouse. So, for example, if you’re ordered to pay the joint credit card and you file bankruptcy, that debt will be discharged in Chapter 13 but not Chapter 7.
Wiping out your debts jointly through bankruptcy will simplify the property division process in a divorce. However, before filing a joint bankruptcy, you must make sure that your state allows you enough exemptions to protect all property you own between you and your spouse. Certain states allow you to double the exemption amounts if you file jointly. So if you own a lot of property, it may be a better idea to file a joint bankruptcy if you can double your exemptions.
If you can’t double your exemptions and you have more property than you can exempt in a joint bankruptcy, it may be more advantageous to file individually after the property has been divided in the divorce. Also, keep in mind that if you file bankruptcy during an ongoing divorce the automatic stay will put a hold on the property division process until the bankruptcy is completed.
(To learn more about how exemptions work, which ones you can use, and the amount of homestead exemption in your state, see Bankruptcy Exemptions.)
Discharging Marital Debt
Litigating which debts should be assigned to each spouse in a divorce can be a costly and time-consuming process. Further, ordering one spouse to pay a certain debt in a divorce decree does not change the other spouse’s obligations toward that creditor.
For example, let’s say your ex-husband was ordered in the divorce to pay a joint credit card you had together. If he doesn’t pay it or files bankruptcy, then you are still on the hook for the debt, and the creditor can come after you to collect it. If you end up paying the debt, you have a right to be reimbursed by your ex-husband because he violated the divorce decree. This holds true even if he filed bankruptcy because he can discharge his obligation to pay the creditor but he cannot discharge his obligations to you under the divorce decree.
However, trying to collect from your ex will usually mean spending more money to pursue him in court. As a result, it may be in both spouses’ best interest to file bankruptcy and wipe out their combined debts before a divorce.
Income Qualification for Chapter 7 Bankruptcy
If you intend to file a Chapter 7, the decision to file before or after a divorce can come down to income if you maintain a single household. If you wish to file jointly, you must include your combined income in the bankruptcy. If your joint income is too high and you don’t pass the Chapter 7 means test, you might not be able to qualify for a Chapter 7.
This can happen even if each spouse’s income individually is low enough to qualify on his or her own. This is because Chapter 7 income limits are based on household size and the limit for a household of two is not twice that of a single person household (it’s usually only slightly higher). In that case, it may be necessary to wait until each spouse has a separate household after the divorce to file bankruptcy.
The lawyers at Amourgis & Associates have the experience to help you navigate through any bankruptcy situation. Call our legal office at (330) 535-6650.