Wilmington, DE asked in Bankruptcy for Delaware

Q: Does my state's "Doctrine of Necessaries" mean I, unemployed, can't expect a ch7 discharge if my spouse makes an income?

I'm very confused by Delaware state code's "duty to support" clause and how it applies to my bankruptcy case. The clause says each spouse has the duty to support the other, so my wife is technically responsible for my ER bills? But the subsequent clause states that this duty second in priority to the duty to support the children. I know we couldn't support our children and pay off my debts, our income is too low. Is this my way forward?

I am hoping to file Ch7 as an individual to discharge medical bills and unsecured debts in my name.

We are a family of 5 with a household income about $20,000 below the state median. My wife has been our main financial support, and I have psychological and physical issues that interfere with my ability to maintain employment.

Should I assume that an attempt to file Ch7 would be denied and my wife would be forced to pay on my medical bills?

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2 Lawyer Answers
Timothy Denison
Timothy Denison
  • Bankruptcy Lawyer
  • Louisville, KY

A: No. You should not assume it will be denied. The law you refer to is a state law. Bankruptcy is governed exclusively by federal law. Consult and experience bankruptcy practitioner to help you navigate a chapter 7 filing.

W. J. Winterstein Jr.
W. J. Winterstein Jr.
  • Bankruptcy Lawyer
  • Boyertown, PA

A: Section 109 of the Bankruptcy Code determines who is eligible for relief under each of the different bankruptcy "chapters", e.g., 7, 13, 11, etc.

Federal law, it is often said, is the "supreme law of the land", and that is certainly true where a determination of who may be eligible for bankruptcy relief must be made.

While state law creates and defines certain rights with respect to property, and the validity of liens claimed against such property, no state law supersedes or diminishes bankruptcy eligibility criteria under Section 109.

And that is especially true when your family income is well below the "median income" for your state.

Your question strongly suggests that you have done some research online, yourself, but that you have not conferred with a Delaware lawyer about these issues. Speak with a Delaware consumer bankruptcy lawyer, and I strongly believe that your eligibility "issues" will evaporate.

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