A spouse who files bankruptcy usually cannot escape a Georgia divorce fee award, because Georgia treats the award as alimony and federal law does not discharge support.
Where the Federal Rule Is
The rule is in 11 U.S.C. 523(a)(5), quoted by the Court of Appeals in Dingle v. Carter, 350 Ga. App. 255 (2019): “[a] discharge under section 727 … of this title does not discharge an individual debtor from any debt … for a domestic support obligation.” A companion provision, 11 U.S.C. 523(a)(15), covers other divorce-related debts.
Why a Fee Award Counts as Support
Georgia treats fees under OCGA 19-6-2 as part of alimony, as a separate post explains. But the label alone does not settle the federal question. Under Daniel v. Daniel, 277 Ga. 871 (2004), “the label of a particular obligation is not determinative of its dischargeability, but rather its substance and function.” Applying the same federal test in In re Strickland, 90 F.3d 444 (11th Cir. 1996), the Eleventh Circuit held that a $9,430.50 fee debt owed to a former spouse and her lawyer after a failed custody and support modification was in the nature of support and survived.
Fees awarded as a sanction under OCGA 9-15-14 are a different kind of debt. In Vakharwala v. Vakharwala, 301 Ga. 251 (2017), the Supreme Court described a $98,385 award under that statute as “unrelated to alimony.”
Who Decides
Under Rogers v. McGahee, 278 Ga. 287 (2004), “[s]tate courts have concurrent jurisdiction with federal bankruptcy courts to determine whether a debt is in the nature of alimony, maintenance, or support.” In Dingle, a father filed bankruptcy, was then ordered to pay $30,000 to the mother’s attorney in a custody case, and was later discharged. The trial court thought only the bankruptcy court could decide whether that debt survived; the Court of Appeals sent the case back for it to decide. If the bankruptcy court has already ruled, its ruling is binding.
Contact Us
This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!