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Divorce and Bankruptcy: Frequently Asked Questions


When you are considering divorce in Orlando and you are also thinking about filing for bankruptcy, you are likely to have many questions about the two different processes. For example, should you plan to file for divorce first or bankruptcy first? And if you do file for bankruptcy before you file for divorce, do you need to file a joint bankruptcy petition? We often get questions from clients about divorce and bankruptcy, and we want to provide answers to some of those frequently asked questions.

  1. Should I File for Divorce First or Bankruptcy First?

The answer to this question depends upon a number of different factors and is specific to the two individuals who are considering divorce and bankruptcy. For example, are both you and your spouse planning to file for bankruptcy, or is only one spouse planning to file for bankruptcy?

If both parties want to seek bankruptcy protection, then it often makes more sense for bankruptcy to come before divorce. When you file a joint petition for bankruptcy, you can have marital debts discharged, which will make the process of property division much simpler in your Florida divorce. Moreover, if both parties are planning to file for bankruptcy, it costs less money to file a joint petition prior to your divorce as opposed to each of the parties filing for bankruptcy separately once the divorce has been finalized.. However, if only one party plans to file for bankruptcy, it often makes sense to wait until after the divorce, especially if many of the dischargeable debts are separate property.

The type of bankruptcy protection you are seeking can also be a factor in determining whether you should file for bankruptcy before or after your divorce. Chapter 7 can discharge debts quickly, but filing for Chapter 13 bankruptcy prior to your divorce can make divorce extremely difficult if both parties are jointly working on a Chapter 13 repayment plan. It is also possible that filing for bankruptcy after your divorce can make you eligible for Chapter 7 bankruptcy whereas you would not be eligible if filing jointly before your divorce.

  1. Do I Need to File a Joint Bankruptcy Petition Before My Divorce?

If you are married and want to file for bankruptcy before your divorce, both spouses do not need to file for bankruptcy jointly. To be sure, under the U.S. Bankruptcy Code, just one spouse can file for bankruptcy individually. Only married spouses can file a joint bankruptcy, so if the majority of the debts are joint, it may be a good idea to contemplate filing a joint bankruptcy. On the other hand, if the majority of the debts are only in one spouses name, it may be more beneficial for just one spouse to file.

  1. Can I File for Chapter 13 Bankruptcy Before the Divorce?

If the spouses are planning to file bankruptcy jointly, filing for Chapter 13 bankruptcy before the divorce—with the intention of filing for divorce soon after—often will not make sense. There are many reasons that Chapter 13 bankruptcy can be preferable to Chapter 7 bankruptcy, especially if you are trying to avoid foreclosure. However, since most Chapter 13 repayment plans last anywhere from three to five years, most couples who are planning on divorce will want to file for Chapter 13 bankruptcy individually once the divorce is finalized.

Contact an Orlando Divorce Attorney 

If you have questions about divorce and bankruptcy, an Orlando divorce lawyer at our firm can speak with you today. Contact Anderson & Ferrin for more information about how we can help with divorce and bankruptcy issues in Florida.

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