Enforcing Divorce Payments After Your Ex Files Bankruptcy

Attorney Answer

Whether he can walk away from those payments turns on one classification: are they a "domestic support obligation" or a property settlement? Because he agreed to them in place of child support, you have a real argument they are support — and that is the argument worth everything here.

11 U.S.C. § 523(a)(5) excepts from discharge any debt that is a domestic support obligation as defined in 11 U.S.C. § 101(14A). Whether an obligation qualifies is a question of federal law, decided by looking at the parties' intent when they made the agreement and at the substance of the obligation — not at the labels used in the settlement agreement. A § 523(a)(5) debt is nondischargeable in every chapter of bankruptcy.

11 U.S.C. § 523(a)(15) covers debts to a former spouse arising from a divorce that are not domestic support obligations. Here the chapter he filed becomes decisive. In Chapter 7, an (a)(15) debt is nondischargeable. In Chapter 13 it is dischargeable, because 11 U.S.C. § 1328(a)(2) excepts § 523(a)(5) from the Chapter 13 discharge but does not except § 523(a)(15). If he filed Chapter 13 and a court treats the mortgage and vehicle payments as a property settlement rather than support, they can be wiped out.

In Taylor v. Taylor, 737 F.3d 670 (10th Cir. 2013), the Tenth Circuit — which governs bankruptcy questions arising in New Mexico — affirmed that a divorce-related debt one former spouse owed the other was nondischargeable under § 523(a)(15), while affirming dismissal of the § 523(a)(5) claim because the creditor spouse had not alleged facts showing the debt was in the nature of support for him. Read that as a warning as much as support: the party asserting nondischargeability carries the burden, and the support characterization is fact-dependent and can fail.

On the state side, NMSA 1978 § 40-4-7 gives the district court authority to "make and enforce by attachment or otherwise" its orders, and under Subsection G to "modify and change any order or agreement merged into an order" concerning the children, with exclusive continuing jurisdiction until the support obligation ends. That, with the court's civil contempt power, is how the settlement obligation gets enforced — once the dischargeability question is sorted and the automatic stay allows it.

What you can do

1. Find out which chapter he filed and the case number, and get the date first set for the meeting of creditors. It is public record on PACER. 2. Confirm whether you were listed as a creditor and whether notices went to your correct address. 3. Pull your marital settlement agreement and mark the language showing the mortgage and vehicle payments were agreed in place of child support. That language is your evidence of intent. 4. Before you push the reopened divorce case toward a contempt hearing, get the automatic stay checked. Enforcement against a debtor mid-bankruptcy can violate the stay and rebound on you. 5. Get a bankruptcy attorney to look at this now, specifically on whether to file an adversary complaint under § 523(a)(15) as a protective measure while arguing the obligation is really an (a)(5) support debt. 6. Keep paying attention to the mortgage itself. If the house is yours, a missed payment history damages you regardless of who was supposed to pay.

⏱ Time limits apply. A complaint to determine dischargeability of a non-support debt under 11 U.S.C. § 523(a)(15) must be filed within sixty days after the first date set for the meeting of creditors under Fed. R. Bankr. P. 4007(c). A § 523(a)(5) domestic support obligation carries no such bar date. Because the correct characterization is exactly what is in dispute, the sixty-day date in his case is the one to find first.