What Family Law Fees can be Eliminated by Bankruptcy?
I have a pretty good social relationship with a fellow attorney who practices family law. However, despite that divorce attorneys are great referrals for me, this attorney never refers cases to me. One day, when I asked why over lunch, she said “When you file bankruptcy for my client or my client’s former spouse, I lose out on attorney fees.”
The bankruptcy code prevents discharge of certain domestic support obligations arising out of bankruptcy court, like alimony and child support. Bankruptcy Code section 523(a)(5) prevents a discharge of debt “…for alimony to, maintenance for, or support of such spouse or child, in connection with a separate agreement, divorce decree, or other order of a court of record…”
However, what about attorney fees related to one spouse obtaining alimony or child support? Are those fees dischargeable?
In the Matter of: Christopher J. McCloskey, 659 Fed. Appx. 196., a case out of the US Court of Appeals, Fifth Circuit, the issue was whether the attorney fees incurred in obtaining alimony and child support were in the nature of child support and alimony and, therefore, non-dischargeable. The Fifth Circuit ruled that the fees were non-dischargeable.
Other family law attorney fees, for things other than child support or alimony, could be dischargeable in bankruptcy court because those types of attorney fees are not protected under the bankruptcy code.
Accordingly, if you are a spouse and you want your ex to continue to pay your attorney fees after the divorce and after bankruptcy, you need to ensure that your attorney is carefully detailing his or her fees and specifically describing which portion(s) of those fees are related to child support or alimony and, therefore, non-dischargeable.
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Shawn M. Yesner, Esq., is the host of the Crushing Debt Podcast and founder of Yesner Law, P.L., a Tampa-based boutique real estate and consumer law firm that helps clients eliminate the financial bullies in their lives. We assist clients with asset protection, the sale and purchase of real property, Chapter 7 liquidation, Chapter 13 reorganization, bankruptcy, foreclosure defense, debt settlement, landlord/tenant issues, short sales, and loan modifications in Tampa, Westchase, Odessa, Oldsmar, Palm Harbor, Clearwater, Pinellas Park, Largo, St. Petersburg, and throughout the greater Tampa Bay area.