Bankruptcy law does not allow any Domestic Support Obligations (DSO) to be dischargeable in bankruptcy, whether in Chapter 7 or Chapter 13. That means your ex-spouse will not be able to get out of their court ordered obligations for child support or spousal support (alimony). That is the short answer.
We must now look at what exactly a Domestic Support Obligation truly is. Section 523 (a) (5) of the bankruptcy code exempts all DSO’s from discharge in bankruptcy. According to the code, DSO means "any debt that accrues before, on, or after the date of the order for relief under this title". In addition a DSO is owed or recovered by:
- a spouse, former spouse or child of the debtor or such child’s parent, legal guardian, or responsible relative, or;
- a government unit (Friend of the Court).
This is where your divorce lawyer must be careful in crafting your divorce judgment. Bankruptcy courts will look to see how state law characterizes the obligation. Factors the bankruptcy court will look at include:
- whether the court or the parties intended this obligation to be support;
- the parties relative financial resources and earning power;
- how the obligation was characterized in the divorce judgment (best to use the term "spousal support" and "child Support")
- whether the obligation would end upon the remarriage of the receiving spouse;
- whether the support was modifiable;
- how this obligation is treated for tax purposes; and
- whether the obligation is enforceable by contempt.
This is why it is important to craft your divorce judgment very carefully to ensure that the DSO is truly DSO. If the bankruptcy court cannot determine from the divorce judgment that the obligation is a DSO, you may lose out on your right to receive your spousal support.
If you have any questions about your rights, please call your Metro-Detroit Divorce Lawyer for a free consultation, In Macomb County, call (586) 439-4297, extension 0. In Oakland County, call (248) 581-0598, extension 0. I will sit down with you and answer all your questions and advise you of your rights.