Child support and alimony survive bankruptcy every time. No matter what chapter, filing strategy or clever reading of the divorce decree, they will not be erased. That one rule shapes almost every decision a Georgian makes about filing for bankruptcy, and it’s the first thing we explain to people when they walk in with a divorce decree in one hand and a pile of collection notices in the other at Duncan’s Bankruptcy Law.
Support Obligations Are Never Discharged
Federal law treats support as untouchable. Under 11 U.S.C. § 523(a)(5), a domestic support obligation cannot be wiped out in Chapter 7 or Chapter 13. The statutory definition in § 101(14A) covers child support, alimony, and maintenance owed to a spouse, a former spouse, a child, or a government agency collecting on their behalf.
The decree does not settle what the debt is called. Bankruptcy judges look at what payment was actually made for. An obligation labeled “equalization” can still be considered a support obligation if its purpose was to keep a household going.
The automatic stay does not protect you here either. Section 362 (b) (2) allows a former spouse to continue collecting support, continue garnishing wages and continue enforcing the order in the Georgia superior court while your bankruptcy case is ongoing.
Property Settlement Debts: The Chapter You Choose Decides the Outcome
This is where the two chapters split and where most people are surprised.
A property settlement debt is anything that you owe to your ex that is not support. Think about an agreement to pay off a joint account, refinance a marital home or reimburse a share of a retirement account. Section 523(a)(15) governs this.
- In Chapter 7, they are not dischargeable. Period. Your ex does not have to file anything or prove anything.
- In Chapter 13, you can be discharged only if you complete every payment under a confirmed plan and earn full discharge under § 1328(a).
- Fall short of that and the debt will survive. A hardship discharge won’t reach it.
For many people, carrying a large equalization payment is the entire reason for filing Chapter 13 rather than Chapter 7.
A “Hold Harmless” Clause Does Not Bind Your Creditors
Your decree can order your ex to pay a joint MasterCard. The bank has never signed it.
If both names are on the account and your ex files for bankruptcy, the creditor will come after you. Your remedy is to sue your ex in a family court, not the lender. Divorce does not sever joint liability, and creditors don’t read divorce decrees.
Georgia’s Exemptions Work Differently When You File Alone
Georgia is an opt-out state. You cannot use the federal exemption list. You are limited to what O.C.G.A § 44-13-100 allows, as confirmed by the Northern District of Georgia bankruptcy court.
Married couples filing jointly can claim certain exemptions, most importantly the homestead. Once you are divorced, you will file alone. The protection available to you decreases, and a house that you kept in the settlement may have more equity than you can protect. This calculation should happen before a petition is filed, not after a trustee asks questions.
Timing Matters More Than People Expect
The means test looks at your income over the six months prior to filing. A person who recently went through a divorce may qualify for Chapter 7 seven months after the divorce, when they might not have qualified two months earlier. Household size and the outcome also change.
Before filing, you must complete a credit counseling course with an approved provider within 180 days before your petition under § 109(h).
Chapter 13 Requires Support to Be Current
Support arrears are a priority claim. Your plan must pay them in full before the court grants you discharge, and you must certify that all payments due after filing have been paid. If you fall behind on payments, it puts the entire case at risk.
Bring Us the Decree
Filing after a divorce is not the same as filing after a job loss or medical crisis. The decree itself is evidence, and the wording of a single paragraph can decide whether debt follows you for years.
Bring your divorce decree and your settlement agreement to Duncan Bankruptcy Law. We will read them line by line, tell you which obligations are permanent and which are not, and show you whether Chapter 7 or Chapter 13 will actually get you where you want to go. Decades of Georgia bankruptcy practice are behind that conversation. Contact us to schedule a free consultation and start the process.
