Which Should You File First: Bankruptcy or Divorce?

Financial strain and marital strain often arrive together. If you are considering both bankruptcy and divorce, the order you file in can change what debts are discharged, how property is divided, and how long both cases take.

There is no single right answer. This page compares the scenarios, explains how the two cases interact when they overlap, and is clear about what bankruptcy can and cannot do to divorce obligations.

How the Two Cases Interact

Filing bankruptcy creates an automatic stay that stops most collection actions. The stay does not stop a Colorado divorce itself.¹ Proceedings to dissolve a marriage can continue, except to the extent they seek to divide property that belongs to the bankruptcy estate.

Divorce matters involving support, parenting, and domestic violence are also outside the stay. Dividing estate property, however, generally has to wait for the bankruptcy court or for relief from the stay, which is the main reason overlapping cases can slow down.

Scenario 1: File Bankruptcy First

Spouses who can still cooperate sometimes file a joint bankruptcy before the divorce. One case, one filing fee, and one discharge can clear shared debts, which leaves less to divide and argue about later.

The tradeoffs are real. A joint Chapter 7 uses combined household income for eligibility.² A joint Chapter 13 requires a repayment plan of three to five years, which is hard to sustain between spouses who are separating.

Scenario 2: File Divorce First

Filing the divorce first lets the court divide property and debts before either spouse decides whether bankruptcy is still needed. After the divorce, each spouse’s eligibility is based on their own income and household, which can make Chapter 7 available to one who would not have qualified jointly.

The risk is that a Colorado property division order assigning a joint debt to your former spouse does not change your contract with the creditor. If your former spouse later files bankruptcy and stops paying, the creditor can still pursue you on a joint account.

Scenario 3: Filing While the Divorce Is Pending

Sometimes one spouse files bankruptcy in the middle of a divorce, often to stop a foreclosure or garnishment. The divorce can continue on everything except dividing estate property, and the divorce court and bankruptcy court then have to coordinate.

This scenario is not automatically a mistake, but it adds cost and delay. If either of you is considering it, the divorce attorney and the bankruptcy attorney should talk before the petition is filed.

The order of filing is a strategic decision with lasting consequences, and it depends on your income, your assets, and how well you and your spouse can still cooperate. Johnson Law Group offers a no-pressure consultation to compare the scenarios with you, so schedule a consultation before either case is filed.

What Bankruptcy Cannot Do to Divorce Obligations

Domestic support obligations, which include child support and maintenance, are not dischargeable in bankruptcy.³ Bankruptcy does not change your duty to pay Colorado child support or a maintenance order.

Other debts owed to a spouse or former spouse under a divorce decree or separation agreement are also nondischargeable in Chapter 7.⁴ Those include an equalization payment or a duty to pay a joint debt.

In Chapter 13, those non-support divorce debts can be discharged once the plan is completed, which is one reason the choice of chapter matters.⁵

Questions to Discuss Before You File Either Case

• Which debts are joint, which are individual, and which are secured by the home or vehicles?
• Would you qualify for Chapter 7 based on household income now, and after the divorce?
• Can you and your spouse cooperate through a joint case, or is the relationship too strained?
• Is a foreclosure, garnishment, or lawsuit forcing the timing?
• Will the divorce include support or an equalization payment, and how would each chapter treat it?

Contact an Experienced Family Law Attorney

Divorce and bankruptcy are each complicated, and the interaction between them is where costly mistakes happen. Johnson Law Group is here to help.

The attorneys at Johnson Law Group coordinate with bankruptcy counsel on the order of filing and will give you a clear read on the tradeoffs. Schedule a free consultation through our Colorado offices, and we will serve as your North Star from here.

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