How can I discharge the divorce court order that I pay my ex-spouse’s attorney fees?

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Jul 14

The answer depends upon a number of factors.  We know that you cannot discharge any debts arising from a divorce except under Chapter 13.  Using that chapter, a debtor may discharge debts which are not domestic support obligations (DSOs).  Domestic support obligations, generally speaking, are debts which are in the nature of alimony, maintenance, or support.

 

The issue, then, may come down to whether or not the attorney fee award is in the nature of support.  That could well depend upon why the attorney fees were ordered.  If the fees were ordered to be paid to help the ex-spouse support the family, for example, the award will likely be a DSO and not be dischargeable.  On the other hand, if the fees were ordered to punish you for having over-litigated the divorce case, the attorney fee order will likely not be a DSO.

 

In making the determination of whether or not a debt is a DSO, bankruptcy courts are not bound by the label or description used by the family court.  That label may be one factor, but the bankruptcy court will make its own determination.  It will look both at the nature of the award and the function that the award was designed to achieve.  An award or order which seeks to equalize the assets and liabilities will likely not be a DSO.  An award which provides for the children of the marriage likely will be.

 

These are difficult issues with lots of gray area.  We like to have an opportunity to review any marital settlement agreement before it is entered into to ensure that our client’s divorce will not jeopardize a future fresh start.