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Are Attorneys’ Fees in Post-dissolution Custody and Support Proceeding Dischargeable in Bankruptcy?

by Dorota Trzeciecka on July 17th, 2012

I was sitting in my car waiting for parking, when I got a call from a single mom in distress.  She just found out that her ex husband filed bankruptcy, after the family court awarded her attorneys’ fees in a long drawn child custody case.  She run up all her credit cards to hire an attorney to fight him, and was afraid that now that he filed bankruptcy, she may not be able to recover her  attorneys’ fees.  She said that she read in my post that alimony and child support are not dischargeable in bankruptcy, but she wanted to know if her ex husband could discharge the attorneys’ fees that she was awarded.  I am hoping to answer her question in this post.

The general rule is that attorneys’ fees arising from post-dissolution custody or alimony proceeding constitute support for the former spouse, where the award is based on respective wages or ability of the parties to pay.   More specifically, the courts [in Florida] primarily focus on two criteria in determining whether an attorneys’ fees obligations are non-dischargeable in bankruptcy.  In some cases the courts look at the nature of the primary underlying obligation under which the attorneys’ fees arose.  For example, if the attorneys’ fees are related to enforcement of obtaining alimony, child support, or maintenance, such fees may be found non-dischargeable.  In other cases the courts looked at the basis of state court decisions for awarding fees.  If state court awarded the attorneys’ fees to one party based on the disparity in the financial position of the parties, then the bankruptcy court may find that because the award of attorneys’ fees was in the nature of support, it is therefore not dischargeable.  But, there is authority that the contrary may also be true.  When the court determines that the attorneys’ fees were based not on the on “the respective wages or ability of the parties to pay”, but was based upon and supported, for example, by the bad faith litigation misconduct of one of the parties, the court may find that the attorneys’ fees are dischargeable.

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