July 31, 2010 Leave a comment
The most common types of non-dischargeable debts are student loans, government fines and fees and some taxes, spousal and child support. There are other categories such as debts incurred due to fraud but these are much less common.
Student loans– These debts are almost always not dischargeable. Whether they are government backed student loans or loans from a private agency they are not dischargeable. The 2005 BAPCA law saw to that. Loans issued “for any educational purpose” are now all non-dischargeable in bankruptcy and student loans will pass through the bankruptcy unaffected and you will have to pay them.
There is a hardship discharge for student loans in bankruptcy but it is very hard to get. To get a hardship discharge of student loans your attorney would have to bring an adversary proceeding in bankruptcy court. This amounts to a mini-trial where all the facts of the hardship would have to be proven.
It is expensive and time-consuming to bring such a s case and there is no assurance that you will win. In fact it is apparently very hard to win one of these trials at all. There are stories of judges looking at a disabled debtor and telling them that they though they cannot work any more in their field, they could teach and earn money to pay the student loan back that way.
Government fines, fees, penalties, and some taxes– If you get a traffic fine or criminal fine levied by a court or other government agency then those fines are not dischargeable in bankruptcy. That is easy but taxes are more difficult. The main rule for taxes is the 3 year rule that states that 3-year-old income taxes are dischargeable in bankruptcy.
So in 2012 (after April 15th) income taxes for 2008 would be dischargeable. This is because these taxes were due in april of 2009. Both state and federal income taxes are dischargeable in bankruptcy if the meet this 3 year rule. There are other rules too but this is the main one that applies to most people.
Other types of taxes are not dischargeable so consult with an attorney for advice on your tax situation.
Spousal and child support– Forget about discharging these. You will have to pay your ex-spouse or your children after you get a support obligation levied against you.
Fraud– Debts where fraud is proven will not be dischargeable. If you get sued and the plaintiff alleges fraud then you want to fight these cases because bankruptcy will not save you from having to pay. The normal credit card suit usually will not contain a fraud allegation but credit card companies can allege fraud in a bankruptcy. This usually occurs if you have very large recent charges on your cards for cash advances or luxury items.
If you have such charges then tell your attorney so he can wait some time to file or advise you on the possible consequences if you do file right away.
The good news is that if your debt does not fall into one of the non-dischargeable categories then it is probably dischargeable in a bankruptcy!
For more info. check out my websites at: www.farquharlaw.com or www.freshstartsandiego.com. Or call my office to speak toe for free about any bankruptcy or debt related issue at (619) 702-5015. Call now for free credit report and analysis! I am a San Diego bankruptcy lawyer. For a free e-book: “13 THINGS YOU SHOULD DO TO PREPARE FOR YOUR BANKRUPTCY FILING” please send a request by e-mail to: email@example.com.