Generally speaking, one of the most significant changes in the bankruptcy code in 2005 (BAPCPA) is that all domestic relations obligations created by a divorce decree or separation agreement are non-dischargeable. The spousal support defined as Domestic Support Obligations are non-dischargeable in every chapter, but non-support obligations under 523 (a)(15) MAY BE dischargable in a Chapter 13 plan.
How do we know if alimony is dischargeable in a chapter 13 bankruptcy? The court will consider the substance of the underlying obligations, as well as the relative financial circumstances of the parties at the time of their divorce. To ascertain the intent of the parties and the substance and function of the obligation, a bankruptcy judge may consider any or all of the following factors:
(1) The amount of alimony, if any, awarded by the state court and the adequacy of any such award;
(2) the need for support and the relative income of the parties at the time the divorce decree was entered;
(3) the number and age of children;
(4) the length of the marriage;
(5) whether the obligation terminates on death or remarriage of the former spouse;
(6) whether the obligation is payable over a long period of time;
(7) The age, health, education, and work experience of both parties;
(8) whether the payments were intended as economic security or retirement benefits;
(9) the standard of living established during the marriage.
If your spouse is trying to discharge your alimony you need to see an attorney right away to make sure your rights are protected. Alternatively, if you need to discharge alimony, an experienced attorney can help you determine how the court is likely to view your case.
For more information about Bankruptcy and if alimony dischargeable in bankruptcy – contact Cynthia Remboldt, at the Remboldt Law Firm at 404-348-4081. FREE consultations can be scheduled by calling 404-348-4081. Evening and Weekend hours are available to meet with an attorney. If bankruptcy turns out to be the best way to move forward considering your alternatives, goals and financial challenges, payment plans are available if you need them.