How long will my spouse’s bankruptcy delay my Virginia divorce?
As discussed in the answer to the question, “Will a bankruptcy filing stop my Virginia divorce case?”, the bankruptcy filing may stop aspects of a Virginia divorce case from continuing. The length of the delay due to bankruptcy depends upon the type of bankruptcy filed by your husband or wife.
A chapter 7 case typically takes 4 to 5 months from the order for relief on the filing date until the order of discharge. The automatic stay protecting the debtor, property of the debtor, and property of the estate starts as soon as the case is filed. The first meeting of creditors is set 20 to 40 days after the filing date. A creditor may file a complaint objecting to the discharge of the debtor, or a complaint objecting to the dischargeability of a particular debt, by filing an adversary proceeding within 60 days after the meeting of creditors. If no complaints are filed, the clerk of the court may issue an order of discharge after about 10 days after the 60 day period expires. Unless a party is granted relief from the automatic stay, the automatic stay expires against property when the property is no longer property of the estate and against the debtor when the discharge is granted or denied in a chapter 7 case or when the case is closed or dismissed. The chapter 7 trustee may abandon property from property of the bankruptcy estate anytime after the case is filed, although the abandonment is usually announced at the meeting of creditors. After the automatic stay ends, the debtor will be protected from collection of discharged debts by the discharge injunction. As discussed in the answer to the question, “Can my spouse discharge a family law debt in bankruptcy?”, some family law debts can be discharged.
A chapter 13 case will typically last from 3 to 5 years. In a chapter 13 case, property of the estate includes property acquired while the case is pending and earnings from services performed by the debtor during the case. Unless otherwise provided in the chapter 13 plan, confirmation of the plan vests all property of the estate in the debtor. These two provisions may complicate efforts by divorce counsel to address any portion of the debtor’s post-petition earnings in a separation agreement or property settlement agreement, particularly since actions taken in violation of the automatic stay may be void or voidable. The better practice will often be for one of the spouses to file a motion for relief from the automatic stay in the chapter 13 bankruptcy case to continue and conclude the Virginia divorce case.
You should consult with your Virginia bankruptcy or divorce attorney to discuss how long your husband or wife’s bankruptcy will delay your separation or divorce proceedings.