Do I File For Bankruptcy or Divorce First?
Bankruptcy and Divorce can go hand in hand. The timing of which to do first can be a difficult decision and can have a major impact on your finances going forward. In this post we will discuss things to consider when deciding whether to file bankruptcy or divorce first.
Do I File for Bankruptcy or Divorce First?
Are you ready to file for bankruptcy? Is a divorce filing also looming on the horizon? Getting this right all comes down to timing. This critical factor will play a role in whether you file bankruptcy or divorce first. Please continue reading to find out if you should file for divorce before or after a bankruptcy filing.
Divorce and Bankruptcy: How Do They Affect One Another?
Generally speaking, going through the bankruptcy process should take precedence over filing for divorce. If you were to file for bankruptcy while the divorce proceedings were already underway, it would seriously delay things and make it impossible for the divorce to go through. By filing for bankruptcy ahead of the divorce, the distribution of liabilities and assets can successfully be completed without bankruptcy barriers barring your path.
Most people would prefer to get a divorce and file bankruptcy at the same time. Unfortunately, because of the information that we just shared with you, you now know that this is impossible to accomplish. Since bankruptcy has a direct effect on a personís personal debt, this will also have an effect on the way that debt is handled during the divorce proceedings.
A final piece of the puzzle is in regards to the way that the bankruptcy court will treat your income. Income is treated differently depending on varying factors that include whether you are divorced, separated, or currently married.
Why Should I File for Bankruptcy First?
Are you still on good terms with your spouse? If so, then filing for bankruptcy ahead of divorce mediation is the best potential solution for all parties involved. You can file jointly, and this allows all of your current debt to be addressed as one bankruptcy case.
Why is this the right choice?
Simply put, by filing jointly, you can get rid of all of your joint debts together. The other possibility is that you may even increase your exemption amounts.
If one spouse is considered the breadwinner in the marriage, this is also a helpful solution because it gives that spouse a better chance of qualifying for Chapter 7 bankruptcy.
Qualifying for Chapter 7 bankruptcy is important because it helps get through the process quickly. As a matter of fact, the entire bankruptcy will be over and done with within 90 days. By going this route, you and your spouse will have the opportunity to eliminate all of your unsecured debt. Instead of having this huge problem hanging over your head during the divorce proceedings, there will be nothing left to fight over as far as unsecured debt is concerned.
Filing Chapter 13 bankruptcy, on the other hand, will make both parties responsible to complete a repayment plan. This can cause further complications during a divorce and even prevent the division of assets by sale.
Once bankruptcy is finished, you can initiate a divorce without any further delay.
Why Should I File for Divorce First?
It might make sense to file for divorce first in certain situations. One situation is when the marital income levels are so high that you will not qualify for Chapter 7 bankruptcy.
As an example, letís assume that you make less money than your spouse. If this is the case, you personally might be able to qualify for Chapter 7 bankruptcy. In this case, youíll be able to eliminate all of your debt without filing Chapter 13 bankruptcy. By avoiding Chapter 13 bankruptcy, you also avoid years of paying down old debt via the repayment plan.
All in all, choosing to file for divorce before bankruptcy should be based on your personal situation. In most cases, filing for bankruptcy jointly with your spouse is the best choice for everyone involved.
ABOUT THE AUTHOR: Neil Bhartia
Mr. Bhartia earned his Juris Doctor from Chapman University School of Law. While there, he served as President of the International Law Society, Editor for the Law Journal, Academic Fellow, and Student Ambassador. Prior to Syndicate Legal, Neil has worked in the legal department of the Screen Actors Guild where he was involved with arbitration between studios/producers and the Guild, and has also held positions with the Public Law Center in the area of consumer fraud, and Macey & Aleman.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.