4.3 Interests in Property from a Divorce

• Library: Bankruptcy Practice in Virginia (Virginia CLE) (2017 Ed.)

4.3 INTERESTS IN PROPERTY FROM A DIVORCE

4.301 Debtor's Entitlement to the Asset. Under section 541(a)(5)(B), any interest in property that would have been property of the estate becomes property of the estate if the debtor acquires it within 180 days after the petition date from a property settlement agreement with the spouse or from a divorce decree. The debtor need not actually acquire the asset itself during the 180-day period as long as the debtor obtains the right to the asset during the period.

4.302 Necessity of Court Order or Property Settlement Agreement. To be brought into the estate under this provision, the asset or the right to acquire the asset must have arisen under a court order or decree or as a result of a property settlement agreement. The order or decree may be a preliminary or a final order. It is enough that the property interest comes to the debtor "as a result of" the court order. Thus, where a divorce decree terminating the marriage operates to change ownership of property from a tenancy by the entireties to a tenancy in common, the interest that the debtor acquires in the property becomes property of the bankruptcy estate. ¹³⁸

4.303 Future Spousal Support. Future spousal support including maintenance and alimony that is due the debtor after the filing date of the bankruptcy is not swept into the...