Full question:
May I discharge alimony payments in bankruptcy?
- Category: Bankruptcy
- Date:
- State: National
Answer:
Alimony payments are generally not dischargeable in bankruptcy proceedings. However, a question occasionally arises over the nature of a particular award - is it alimony, or is it a property settlement? The distinction is important, because a property settlement may be dischargeable in bankruptcy proceedings. The fundamental inquiry then becomes whether the intent of the divorce court and the ex-spouses was to provide support or divide marital property.
In determining whether a debt is in the nature of support/maintenance or whether it is properly characterized as a division of property, courts have considered the following factors:
1. whether the obligation terminates upon the death or remarriage of either spouse (termination of the obligation indicates the obligation was for support);
2. whether the obligation is payable in a lump sum or in installments over a period of time (obligation spread over time indicates the obligation was for support);
3. whether the payments attempt to balance the parties' income (payments to balance income indicate the payments were for support);
4. the characterization of the obligation in the divorce decree (obligations described as support indicate the obligation was for support);
5. the placement of the obligation in the decree (obligations under the heading support indicate the obligation was for support);
6. whether there is any mention of support payments (separate mention of support payments indicates the obligation is not for support);
7. whether there are children who need support (if children are of the age when support is required, this indicates the payments may be for support);
8. whether there is a large differential in net income (a large differential in income would indicate the payments were for support);
9. whether the obligation was thought to be taxable to the recipient (payments thought to be taxable indicate the payments were for support); and
10. waivers of maintenance.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
