judicialsupport

Legal Writing for Legal Reading!

When Marriages and Relationships Go Bankrupt

Money and assets are essential parts of divorce and support cases. Although the parties involved in family law cases have interests in money and assets, the reality is that creditors also often have interests in that same money or assets. Sometimes the pressure of creditors interested in obtaining that money or assets becomes so great that filing for bankruptcy is a viable and often resorted-to option by debtors. Of course, filing for bankruptcy potentially can directly conflict with the purpose of division of assets in divorce or support cases.

Generally speaking, filing for bankruptcy will result in an automatic stay against any potential creditors; however it does not serve as a stay upon any proceeding ­regarding the establishment or modification of an order for domestic support obligations and/or the dissolution of a marriage (with the exception of when a determination is sought regarding the division of property that is property of the marital estate).

In terms of the discharge of debts, 11 U.S.C. Section 523(a) prohibits the discharge of debts for support or pursuant to a divorce order. It also prohibits the discharge of debts to a current or former spouse and debts to a child generated during divorce litigation. In short, any debt that arises from a family law matter generally cannot be discharged in bankruptcy. Indeed, if ­filing pursuant to a Chapter 13 bankruptcy, the debtor must propose a plan that pays his domestic support obligations in full. For the purposes of Chapter 13, domestic support obligations include debts owed to one’s ­current and former spouses, child, child’s other parent, and support and alimony. It is worth noting that the language a family court uses in its orders is irrelevant to a bankruptcy court. In other words, bankruptcy courts apply bankruptcy law without regard to whether a family court attempts to work around bankruptcy issues through the use of ­different terms or carefully ­constructed language.

Sometimes an order in a family case can qualify as a nondischargeable support obligation even if it is not a “support case” (e.g., a child support case or a spousal support case). The court has laid out at least four factors to consider that can help discern whether such an order is a support obligation. First, one must look to the ­actual language of the obligation to discern whether it is couched in a way that makes it clear that it is support. Second, one must analyze the respective financial situation of the parties. For example, a great post-divorce wealth disparity between the parties would suggest the obligation is support rather than ­something else. Third, one must try and discern the purpose of the obligation at the time it is entered. Is it clear that its purpose is support, or is it merely property division or for some other reason? Fourth, and related to the previous factor, one must analyze any ­available evidence suggesting the intent of the estranged spouses. Did they intend for the obligation to be support?

In making its decision as to whether an obligation is, in fact, support, courts look at, and balance, all relevant evidence, which includes: the parties’ employment histories; the parties’ prospect for future income; in what proportion the marital property was divided; the number and frequency of any payments from one party to another; the need of the person in receipt of the alleged support for the same; the length of the marriage; the economic disparity between the parties; whether a party is caring for minor children; how the court labeled the money or payments (e.g., did it call it “support”?); and, when the ­alleged support ends or terminates.

Under bankruptcy law, and how it relates to family law, support obligations are distinguished from property settlement agreement debts as to whether they are dischargeable. Marital debts addressed in a property settlement agreement for a divorce may be discharged, and are not priority claims for the purposes of Chapter 13 cases. However, for the purposes of Chapter 7, the presence of a hold harmless clause in a property settlement agreement for such a debt between the ex-spouses creates a new debt between them that cannot be ­discharged. The same applies to debts owed to third parties.

In many family law cases, the court will award one litigant attorney fees for the litigation of the underlying family case. An award of attorney fees is considered to be a type of support and, therefore, cannot be discharged. In saying that, there have been cases where attorney fees have been awarded to a party in a family law case as a result of a sanction or as compensation for bad faith on the party of the adverse party. As these attorney fees are punitive in nature, they do not qualify as support and may be discharged.

The above hopefully provides a ­general guideline as to how family law and ­bankruptcy law relate to one another. It is always recommended for a family lawyer to consult with a bankruptcy lawyer when considering these issues.

Aside from the statute cited above, the following are recommended to review: 11 U.S.C. Section 522, 11 U.S.C. Section 362, In re Shepard, No. 07-1177 S 2008 Lexis 3349 (Bankr. S.D. N.Mex. June 30 2008); Nelson, Keys & Keys v. Hudson, No. 06-81745, 2007 Bankr. Lexis 3943 (Bankr. C.D.Ill. Nov.27, 2007); Deichert v. Deichert, 402 Pa.Super. 415 (1991), Long v. Calhoun, 715 F.2d 1103 (6th Cir.1982); Schulze v. Schulze, 15 B.R. 106 (1981).

Originally published in The Legal Intelligencer on on June 27, 2016 and can be seen here.

Office Quarterly Newsletter: December 2016

My firm, the Law Office of Faye Riva Cohen, P.C., issues a newsletter at the beginning of each quarter, and, accordingly, we sent one out on December 1, 2016.  Our quarterly newsletter updates and informs our readers as to what articles we have published, what seminars we have led, what awards we have received, and what is going on with any other happening at our Firm.

If you wish to read our quarterly newsletter, you can do so here.  In the alternative, if you do not wish to read it in that format, you can click on the images below to read it that way as well.  Thanks and be on the look out for our next newsletter in the beginning of March 2017!

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The United Shapes of Arithmetic: Get Along

Nathan Rudolph, my friend and fellow parishioner at St. John the Evangelist Anglican Church, has started a comic strip which I have greatly enjoyed and appreciated.  With his permission, I will repost them here after he posts them.  I think my readers will appreciate them as much as I do as they are rather insightful with a snarky edge.  Enjoy!

Here are the links to the previously posted strips:

Here is the latest strip:

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Yessource: Yes live in Dallas 7/30/72 – White’s first show and first performance of Close to the Edge material!

Here are my latest uploads to YesSource, my Yes rarities youtube page (about which you can read here).  This post is another addition to my series of Yes music posts.  I started this series here and a collection of all my Yes-related posts is here.  Yes, of course, is a, if not the, premier progressive rock band, and I am an enormous fan of it.

You can see all of my Yessource uploads here.

My latest YesSource uploads can be found here:

Yes Tour Books: Full Circle Tour

Here is another addition to my series of Yes music posts.  I started this series here and a collection of all my Yes-related posts is here.

I saw the progressive rock band Yes play at Tweeter Center (currently known as the Susquehanna Bank Center) in Camden, New Jersey on August 8, 2002 during the first part of their Full Circle Tour.  I posted a review and photographs from this show here.  You can also read more about this show here.

Every now and again Yes produces and sells a tour book that is sold at the merchandise table at their shows during a given tour.  As it turns out, Yes produced and sold as tour book for their Full Circle Tour!  I took photographs of each page of the tour book and posted them below.  Enjoy!

 

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An America I Do Not Know

Ken Kastle is a parishioner with me at our church St. John the Evangelist Anglican Church in Abington, PA. He writes a blog called “Looking at Things Through My Eyes.” Mr. Kastle has had a long career in education and often views his politics as I do, so I often find his blog posts compelling. Below is one of the posts to his blog, enjoy!

Looking At Things Thru My Eyes

November 9, 2016

I awoke this morning to an America I do not know—an America that just elected as its next president a man whose only qualification for this high position is that he conducted a campaign that appealed to the basest instincts of our many of our citizens.

I believe it is universally agreed that Donald Trump has no other qualifications for the presidency. He has absolutely no experience in governing. He says he is extremely rich, a claim that could not be verified because he refused to release his tax returns. He is best known by the public as a reality TV star. Many of his statements lead many to believe he is a racist and an anti-Semite. He is a misogynist, as demonstrated by his vulgar comments about a variety of women during his campaign. To some, he is a failed businessman, capitalizing on three bankruptcies that…

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Yessource: Yes live in Amsterdam 1/21/72

Here are my latest uploads to YesSource, my Yes rarities youtube page (about which you can read here).  This post is another addition to my series of Yes music posts.  I started this series here and a collection of all my Yes-related posts is here.  Yes, of course, is a, if not the, premier progressive rock band, and I am an enormous fan of it.

You can see all of my Yessource uploads here.

My latest YesSource uploads can be found here:

 

Doggone It! Court Cannot Condone Canine Custody

Many Americans have pets, and regardless of whether these pets are dogs, cats, lizards or fish, many pet owners think of their pets as members of the family. What happens when a pet is owned by a married couple who decide to divorce? The landmark Pennsylvania Superior Court case of Desanctis v. Pritchard, 803 A.2d 230 (2002) has answered this question rather definitively.

In Desanctis, the parties were married for about nine years. While they were married, they purchased their family dog, Barney, from the SPCA. As part of their divorce agreement, the parties, using terms typically reserved for child custody matters, awarded wife “full custody” of Barney while husband received what is tantamount to “visitation.”

Not long after their divorce, wife moved a fair distance away from husband and discontinued making Barney available to the husband for visits. Due to wife’s actions, husband filed a complaint against wife in equity. Husband sought injunctive relief to, inter alia, force wife to provide Barney to him, and modify the “custody” arrangement for Barney to ensure he had more time with his pooch. Wife filed preliminary objections to husband’s complaint that were granted by the Court of Common Pleas, which resulted in the dismissal of husband’s complaint, leading him to file an appeal to Pennsylvania Superior Court.

In its review of husband’s complaint and the preliminary objections, and the applicable law, the Pennsylvania Superior Court first pointed out that pets, regardless of our emotional attachment to them, are simply personal property. The court ruled that the agreement explicitly awarded the dog to wife. The court further ruled that any terms in an agreement which award a type of custody of the dog are void on their face.

Although it may be tough for animal lovers to hear, the court, rather bluntly, stated that a visitation schedule for a dog is analogous, in law, “to a visitation schedule for a table or a lamp.” As a result, pursuant to 23 Pa.C.S.A. Section 3503, property rights dependant upon a marital relationship are terminated upon divorce and, therefore, pursuant to 23 Pa.C.S.A. 3504, the parties to a divorce are to have “complete freedom” as to their property upon divorce. An agreement to somehow share property is not, by definition, complete freedom.

So, a divorce, in addition to dissolving the relationship between a husband and wife, also serves to potentially dissolve the relationship with a person and his pet. This is important to remember when separating as one may want to claim the pet as soon as possible in order to try and do as much as possible to retain the pet post-divorce.

Originally published in Upon Further Review on June 21, 2016 and can be found here.

Giving thanks for these 7 must-read non-US YA reads of 2016

Here is the latest post by Angela and Daz Croucher to their blog A.D. Croucher! They are up-and-coming young adult authors. Check them out!

A.D. Croucher

Monsters, music, psychopaths, love stories, and more await you in these 7 essential YA reads from outside the US.

my-sister-rosa

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YesSource: Yes live on November 24, 1971

Here are my latest uploads to YesSource, my Yes rarities youtube page (about which you can read here).  This post is another addition to my series of Yes music posts.  I started this series here and a collection of all my Yes-related posts is here.  Yes, of course, is a, if not the, premier progressive rock band, and I am an enormous fan of it.

You can see all of my Yessource uploads here.

My latest YesSource uploads can be found here:

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