Debts bankruptcy does not erase
Debts that usually stay after a discharge.
Your state:
A bankruptcy discharge is a court order that ends your personal duty to pay many debts. But some debts usually survive it. This guide lists them, with the law for each, so you can see which of your debts may stay after the case ends.
Debts that usually stay with you
Some debts usually stay with you after bankruptcy.
- Most recent taxes, and debts you took on to pay those taxes
Law: 11 U.S.C. 523(a)(1), (a)(14)
- Child support and alimony (domestic support obligations)
Law: 11 U.S.C. 523(a)(5)
- Other debts owed to a spouse, ex-spouse or child from a divorce or separation (Chapter 7)
Law: 11 U.S.C. 523(a)(15)
- Most student loans, unless the court finds repaying them would be an 'undue hardship' (you must file a separate lawsuit called an adversary proceeding)
Law: 11 U.S.C. 523(a)(8)
- Criminal fines, penalties and restitution
Law: 11 U.S.C. 523(a)(7), (a)(13)
- Debts from fraud, false statements or embezzlement, if the creditor asks the court in time and wins
Law: 11 U.S.C. 523(a)(2), (a)(4), 523(c)
- Debts for willful and malicious injury
Law: 11 U.S.C. 523(a)(6)
- Debts for death or injury caused by drunk or drugged driving
Law: 11 U.S.C. 523(a)(9)
- Debts you did not list in your case, in some situations
Law: 11 U.S.C. 523(a)(3)
Liens on your car or home
A discharge ends your personal liability but does not remove a valid lien. A secured creditor may still take the property (such as a car or house) if you do not pay.
Student loans
To discharge federal student loans, you must file a separate case inside your bankruptcy (an adversary proceeding) and show 'undue hardship'. Since November 2022 the Justice Department and Department of Education use a standard process: you fill out an attestation form about your income, expenses and circumstances. Government lawyers review it and may recommend full or partial discharge to the judge. The judge makes the final decision. The case is handled by the U.S. Attorney's office for your district.
Law: 11 U.S.C. 523(a)(8); DOJ Guidance for Department Attorneys Regarding Student Loan Bankruptcy Litigation (Nov. 17, 2022)
The attestation form (justice.gov).
Child support and alimony during the case
When you file, an 'automatic stay' starts right away. Most creditors must stop collection: lawsuits, wage garnishment, foreclosure, repossession and collection calls. Some actions are not stopped, such as collecting child support or alimony and many criminal cases. If you had a case dismissed in the past year, the stay may last only 30 days unless the court extends it; with two or more dismissed cases in the past year, there may be no stay at all.
Law: 11 U.S.C. 362(a), 362(b), 362(c)(3), 362(c)(4)
Chapter 7 and Chapter 13
Chapter 7 is 'liquidation'. A trustee may sell property that is not exempt and pay creditors. Most individual Chapter 7 cases have no property to sell. Most remaining debts are discharged, usually about 60 to 90 days after the first date set for the meeting of creditors.
Law: 11 U.S.C. 701-727; Fed. R. Bankr. P. 4004(c)
Chapter 13 is a repayment plan. You keep your property and pay part or all of your debts through a court-approved plan over 3 or 5 years. You need regular income. It can let you catch up on missed mortgage payments.
Law: 11 U.S.C. 1321-1328
Compare them in Chapter 7 vs Chapter 13.
If you got a discharge before
A past bankruptcy can limit a new discharge:
- Chapter 7 after Chapter 7: 8 years between the filing dates of the two cases (if you got a discharge in the first).
- Chapter 7 after Chapter 13: 6 years between filing dates, unless your Chapter 13 plan paid 100% of unsecured claims, or at least 70% in a good-faith best-effort plan.
- Chapter 13 after Chapter 7: no Chapter 13 discharge if you got a Chapter 7 (or 11 or 12) discharge in a case filed within 4 years before the new case.
- Chapter 13 after Chapter 13: no new discharge if you got a Chapter 13 discharge in a case filed within 2 years before the new case.
Law: 11 U.S.C. 727(a)(8); 11 U.S.C. 727(a)(9); 11 U.S.C. 1328(f)(1); 11 U.S.C. 1328(f)(2)
You must finish the course
After you file, you must take a second, separate course on personal financial management (debtor education) from an approved provider. In most cases you get no discharge without it. Chapter 7: file the certificate within 60 days after the first date set for the meeting of creditors. Chapter 13: by the date of your last plan payment. Some providers send the certificate to the court for you.
Law: 11 U.S.C. 727(a)(11), 1328(g); Fed. R. Bankr. P. 1007(b)(7), 1007(c)(4)
This is general information, not legal advice. Whether a particular debt stays depends on your facts. A legal aid office can help for free; each state page lists free help.