Which Should You File For First: Bankruptcy or Divorce?  

Many people who are facing a divorce are also facing substantial financial difficulties as well. If you are considering a divorce, you may wonder whether or not you need to file for bankruptcy before or after your divorce in order to obtain the most benefits and ensure your legal rights are protected. If you feel confused about the legal aspect of divorce, bankruptcy, and how you should move forward with either, or both, of these types of legal action, understanding how these legal processes work can help you better understand your legal rights. 

Filing for Bankruptcy First 

If you make the decision to file for bankruptcy, you can do this as an individual and it will not affect your spouse in any way regarding their financial status or credit score. Therefore, if you file for bankruptcy prior to filing for divorce, it will only impact your own personal financial situation and your own personal credit score. You do not ever need your spouse’s consent to file for personal bankruptcy, however, your bankruptcy will only impact your own personal assets and not any marital assets you may have. Additionally, it is important to note that you also have the option to file for joint bankruptcy. 

Filing for Divorce First 

If you file for bankruptcy first, the bankruptcy court will only be able to look at your personal assets and none of the assets that may be yours following the equitable division of assets following a divorce. If you make the decision to file for divorce first, and then file for bankruptcy, you may have more assets or different assets than you did if you would have filed prior to divorce. 

Filing Bankruptcy During a Divorce

A circumstance may arise that requires a person to file for bankruptcy in the middle of a divorce. If this occurs, then an “automatic stay” is placed on your finances which temporarily places a hold on the bankruptcy process until the assets can be officially and legally divided for divorce purposes. 

How Bankruptcy Affects Child Support or Alimony 

You will always have to pay your child support or alimony (spousal support) payments if ordered by the court, even if you file for bankruptcy. These types of court-ordered debts are considered non-dischargeable, meaning that you can not avoid paying them or eliminating them through a bankruptcy process under Section 523(a)(5) of the Bankruptcy Code. However, filing for bankruptcy may make your financial obligations less overwhelming and help you have the extra income to pay for your child support or alimony payments easier. 

Contact an Experienced Family Law and Bankruptcy Attorney 

If you are considering filing for any type of bankruptcy, or filing for divorce, contact an attorney that has experience with both of these types of law and can advise you regarding your legal rights. Contact an experienced attorney at Lankford & Moore Law to help you understand how best to proceed regarding both your divorce and your bankruptcy case. 

I realized the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby — not even money, certainly not my soul.

Mahatma Gandhi

Lankford & Moore Law in Downtown Lawrenceville

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