Are Attorney divorce fees dischargeable debt ?

[48adam22]

I thought I knew the answer to this,,, now I'm second guessing myself and i'm thinking I was wrong.

I filed chapter 7. I was divorced last May and in the divorce I was assigned 50 % (fifty) of my ex-wife's Attorney fees. My half comes to $ 8,200.00 oh well, that's life. I have read two Nolo BK books and I thought this debt was dischargeable if it was not for any kind of domestic support obligations alimony, blah blah blah which it is not,,, just straight Attorney fees.

I was doing some reading last night to brush up on my up coming 341 meeting and topic was bugging me so I did some more reading and on page 264 of the chapter 7 Nolo book it says under the new BK law this type of debt might be nondischargeable

Does anyone have a answer on this one ????

Thanks

[jadams]

I found this article.

To me it sounds like it would depend on how the fees were incurred. If they were incurred as part of general divorce proceedings, division of property, etc. -- probably dischargeable.

But if these fees were specific to the attempt to collect support or alimony, I saw a few cases that suggest they would be non-dischargeable.

It's not an automatic non-dischargeable debt. The attorney would have to file a Complaint to Determine Non-Dischargability and win.

I don't have a copy of the NOLO book to see what they mention on page 264. Under what reasoning do they say it could be non-dischargeable?

[48adam22]

Thanks J.

I read the article,, looks like it was written in 2001,,, the laws were changed I think in 2005.

I should have done a little more research before posting,,,,,, I looked up 11 U.S.C. Section 523 (15.) and this debt is NOT dischargeable in a chapter 7 BK darn. I'm still learning

[OhioFiler]

I don't see them as nondischargable unless your ex-wife paid them and you owe the debt to her.

[48adam22]

Yeah, she got a loan from her uncle and paid the Attorney's retainer up front. I guess in a Chapter 13 it is dischargeable, over a period of time, but I would have to wait until my 7 is over, then file for 13. Then I guess you have to wait 4 years,,,,, while i'm still making payments to her,,,,seems like a lot of hassle. It will be paid off in 5 yrs max.

[HHM]

If the Divorce Decree says you are responsible than that debt is NOT discharged. Strictly speaking, any debt assigned by a seperation agreement or divorce decree, of what every kind, cannot be discharged in BK.

The attorney cannot come after you directly, the debt is to your ex spouse.

[jadams]

If the Divorce Decree says you are responsible than that debt is NOT discharged. Strictly speaking, any debt assigned by a seperation agreement or divorce decree, of what every kind, cannot be discharged in BK.

The attorney cannot come after you directly, the debt is to your ex spouse.

Bankruptcy Law Network site you keep in your signature.

So in the example above the Husband can get his obligation to pay the credit card bill discharged, and can use the BK discharge as a defense against legal action by the credit card company. But if the credit card company sued the Wife, she could then turn around and sue the Husband -- *if* the divorce agreement had hold harmless provisions around this debt.

[Tbornetun]

While I don't know enough to say without a debt on this particular poster's debt -- your post above is wrong to say that debt of what ever kind handled in the divorce cannot be discharged. In many cases it definitely can.

"The distinction to be noted is that the debtor can discharge the obligation to Big Credit Card Company, awarded to him for payment in the divorce, but he can’t discharge his obligation to his ex to hold her harmless should Big Credit Card Company sue her for the debt."

Quote come from a posting post-BAPCA on the Bankruptcy Law Network site you keep in your signature.

So in the example above the Husband can get his obligation to pay the credit card bill discharged, and can use the BK discharge as a defense against legal action by the credit card company. But if the credit card company sued the Wife, she could then turn around and sue the Husband -- *if* the divorce agreement had hold harmless provisions around this debt.

This is how it is handled in our district.

[HHM]

WTF, am I not typing english....

Ok, maybe my post didn't provide the necessary clarification to satisfy you...but for all intents and purposes...what I said was, if the Divorce Decree assigns the debt, then that debt is not discharged ("that" is a demonstrative pronoun, it references a previous noun or noun phrase; so, "that debt" is refereing to a "debt assgiend in a divorce decree"). I did go on to clarify that the debt is discharged as to the attorney direclty, but not to the ex-spouse.

So, you tell me, how am I wrong. In fact, we are saying the very same thing

If the divorce decree assigns a credit card (or attorneys fees, etc) to one spouse, and that spouse files BK, the debt is discharged as to the underlying creditor (the bank, the attorney), but not to the ex-spouse. So, in essence, the debt is still owed.

While I don't know enough to say without a debt on this particular poster's debt -- your post above is wrong to say that debt of what ever kind handled in the divorce cannot be discharged. In many cases it definitely can.

"The distinction to be noted is that the debtor can discharge the obligation to Big Credit Card Company, awarded to him for payment in the divorce, but he can’t discharge his obligation to his ex to hold her harmless should Big Credit Card Company sue her for the debt."

Quote come from a posting post-BAPCA on the Bankruptcy Law Network site you keep in your signature.

So in the example above the Husband can get his obligation to pay the credit card bill discharged, and can use the BK discharge as a defense against legal action by the credit card company. But if the credit card company sued the Wife, she could then turn around and sue the Husband -- *if* the divorce agreement had hold harmless provisions around this debt.

[jadams]

You don't need to be a jerk about it just because you're a moderator. The WTF and explanation of pro-nouns is inappropriate. I assumed we were adults on this forum and could have a discussion without snotty attitude.

You provided a very strong statement that debts assigned in a divorce decree cannot under any circumstances be discharged.

Now you're back-peddling and adding qualifiers. Your original statement lacked the additional information you put in your reply, and was thus misleading at best.

There's a whole lot of "IFs" that need to be met for you to be saying "so, in essence, the debt is still owed".

I would think a moderator would be more concerned than me about statements like that coming up as the first result for "divorce debt" searches.

[HHM]

Look, having been on this forum for, jeez, I dunno, very long. When someone asks if a debt is discharged, they are asking if they still owe it. Bottom line, if the debt was included in a Divorce Decree and the person was assigned the debt in the decree, IT IS NOT DISCHARGED. So what if it is discharged to the bank; that doesn't really matter, its a difference without distinction. As to the OP, regardless of the legal behind the scenes stuff, he is still on the hook for 50% of the attorneys fees if the divorce decree so ordered, there is no "if" about it.

I was not intending to be a jerk, we really are saying the same thing, I just happened to be a bit more direct about it in letting him know where he stands without confusing the issue with the minutia.

[car67]

Wtf was a little strong but funny none the less! Shows we got some talent!

[jadams]

I'll do one more reply and bow out.

So what if it is discharged to the bank; that doesn't really matter, its a difference without distinction.

The creditor would have to sue the ex, win, the ex would have to experience some "harm" (i.e. money spent to pay it), the divorce would have to have specified an intent to hold harmless above and beyond the assignment itself, and then the ex would have to sue the BK-debtor and win.

Quick searches here and elsewhere suggest it's extremely common for a creditor to write off the entire debt upon receipt of the primary spouses BK and a copy of the divorce decree -- thus never proceeding against the ex, and never triggering any need for hold harmless enforcement.

So, it's quite possible the debt would not need to be paid or it is at least enough of a burden that the other party may be agreeable to a settlement. It's not a clear cut automatically reaffirmed obligation.

And I think it's important to remind people that our discussion of non-dischargeability is specific to CH 7. Hold Harmless Obligations are dischargeable in a CH 13.

I guess I'm the odd-ball, but if I was one of the involved parties it seems to be an important enough distinction that I would want to know.

[HHM]

I'll do one more reply and bow out.



The creditor would have to sue the ex, win, the ex would have to experience some "harm" (i.e. money spent to pay it), the divorce would have to have specified an intent to hold harmless above and beyond the assignment itself, and then the ex would have to sue the BK-debtor and win.

Quick searches here and elsewhere suggest it's extremely common for a creditor to write off the entire debt upon receipt of the primary spouses BK and a copy of the divorce decree -- thus never proceeding against the ex, and never triggering any need for hold harmless enforcement.

So, it's quite possible the debt would not need to be paid or it is at least enough of a burden that the other party may be agreeable to a settlement. It's not a clear cut automatically reaffirmed obligation.

And I think it's important to remind people that our discussion of non-dischargeability is specific to CH 7. Hold Harmless Obligations are dischargeable in a CH 13.

I guess I'm the odd-ball, but if I was one of the involved parties it seems to be an important enough distinction that I would want to know.

You're leaving out the most crucial point. the EX can go after him whenever she wants.

[OhioFiler]

In summary, If the original debt was owed to the attorney, it is discharged BUT a new debt is created owing to the ex-spouse IF she wants to pursue it.

If the debt was originally paid by the ex-spouse, it is not discharged in a C7.

WTF! I sure hope I'm right!