Divorce: When a Spouse Files Bankruptcy

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1 Presenting a live 90-minute webinar with interactive Q&A Divorce: When a Spouse Files Bankruptcy Dischargeability of Domestic Support Obligations and Property Settlements WEDNESDAY, FEBRUARY 15, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Kenneth Paul Carp, Atty, Law Office of Kenneth P. Carp, Clayton, Mo. Amy L. Gervich, Atty, Law Office of Amy L. Gervich, St. Louis Charles E. N. Rosene, Atty, Law Office of Charles E.N. Rosene, Saint Charles, Mo. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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5 BANKRUPTCY AND DIVORCE Kenneth P. Carp Amy L. Gervich Charles E. N. Rosene 5

6 OVERVIEW Bankruptcy Basics Chapter 7 vs. Chapter 13 Who files and When Bankruptcy Estate and Limitation Qualified Domestic Support Obligations Exception: 11 U.S.C. 523(a)(5) Property Settlement Debt Exception: 11 U.S.C. 523(a)(15) Automatic Stay Preferential Treatment of Creditors Separation Agreements Factors Courts look at Intent of the parties Protect your fee Protect your client from spousal revenge Foreclosure Practical Tips/Possible Pitfalls 6

7 Divorce vs. Bankruptcy Either the last thing together or the first thing separate Divorce Can provide: fresh start separation of assets visitation of children Just a divorce can help you start over and rebuild life, bankruptcy can help you rebuild your financial affairs by getting rid of old debts and allow you to rebuild your financial future 7

8 CHAPTER 7 Purpose Fresh Start To have the debts discharged while keeping exempt property Debt is Discharged Section 523(a) of the bankruptcy code sets forth all nondischargeable debts Means test is qualifying criteria Looks at income from all sources in last 6 months If the mean income exceeds income threshold, then there are deductions to see whether they qualify Deductions including: Non cmi income Taxes Secured debt repayment Court ordered DSO If they don t qualify for a 7 (too much income or failed means test), then Chapter 13 8

9 CHAPTER 13 Repayment of debt over 3 or 5 years Allows debtor to keep your property Some unsecured debt can get discharged Some junior mortgages can be discharged Characterization of DSO Unsecured DSO has priority over other debts No discharge unless all DSO obligations are met Including pre-petition arrearages Non-Filing Spouse and Chapter 13 Ex-spouse can: review plan and object to confirmation of Chapter 13 plan file a claim appear at the meeting of creditors If debtor is not current in post-petition domestic support, the ex-spouse may consider filing a motion to dismiss Is that in his/her best interest? Assessing value of assets Bankruptcy = liquidation value Divorce = market value Be sensitive to the interplay between valuing assets in bankruptcy and divorce 9

10 CHAPTER 7 CHAPTER 13 Discharge of Debts Means Test to Qualify Keep exempt Property Over in 3 or 5 months Reaffirm mortgages Easy to complete Pay Debts Plan to Qualify Keep all Property Over in 3 or 5 years Renegotiate mortgages Very difficult to complete 10

11 Chapter 7/Chapter 13 Chapter 7 Means Test/Threshold (Missouri only) Single <$39,332 2 People <$51,120 3 People <$58,610 4 People <$69,832 5 People <$77,332 6 People <$84,832 Household Size Secured Debt Payments Income Qualifiers Chapter 13 Every dollar is accounted for Can t have over $336,900 unsecured debt OR Over $1,010,650 secured debts 11

12 Chapter 7/ Chapter 13 Prior Bankruptcy Filings 8 years since last Chapter 7 filed Must not have received: Chapter 7 discharge within 4 years prior OR Chapter 13 within 2 years prior 12

13 BANKRUPTCY ESTATE 11 U.S.C. 541 All assets owned by debtor comprise bankruptcy estate RSMO , RSMO , RSMO : Property can be exempted 13

14 AUTOMATIC STAY 11 U.S.C. 362 Divorce court loses jurisdiction to divide property. Crowley v. Crowley, 715 S.W.2d 934 (Mo.App. 1986). Automatic Stay does not prevent: Establishment of Paternity Establishment of Modification Child Custody or Visitation All other dissolution issues other than property» Trial can be bifurcated Stay against all creditors Only applies to filing party (not to non-filing spouse) Relief from stay can be obtained from bankruptcy court 14

15 Who Files and When Garnishments Foreclosures Median income level Household size Court ordered support payments 15

16 Statement of Affairs vs. Bankruptcy Petition Assessing value of assets Bankruptcy = liquidation value Divorce = market value Be sensitive to the interplay between valuing assets in bankruptcy and divorce Bankruptcy trustee has the ability to look at Statement of Affairs just like the divorce attorney can look at the bankruptcy petition 16

17 Discharge Exclusions Excluded from discharge: 11 U.S.C. 523(a)(5): DSO All marital and domestic relations debts incurred in connection with a separation, divorce or related action. 11 U.S.C. 523(a)(15): Property Settlement Debts Any obligations coming from a dissolution judgment or separation agreement are not dischargeable in bankruptcy. Applies not only to property settlement obligations in dissolution judgments, but also to obligations to pay for debts contained in dissolution judgments. 17

18 DSO Domestic Support Obligation is defined in Section 101(14A) of the Bankruptcy Code. Section 101(14A) provides that a DSO is: [A]debt that accrues before, on, or after the date of the order of relief in a case under this title, including interest that accrues on that debt as provided under applicable nonbankrtuptcy law notwithstanding any other provision of this title, that is (A) owed to or recoverable by (i) a spouse, former spouse, or child of the debtor or such child s parent, legal guardian, or responsible relative; or (ii) a governmental unit (B) in the nature of alimony, maintenance, or support (including assistance provided by a governmental unit) of such spouse, former spouse, or child of the debtor or such child s parent, without regard to whether such debt is expressly so designated; (C) established or subject to establishment before, on, or after the date of the order for relief in a case under this title, by reason of applicable provisions of (i) a separation agreement, divorce decree, or property settlement agreement; (ii) an order of a court of record; or (iii) a determination made in accordance with applicable nonbankruptcy law by a governmental unit; and (D) not assigned to a nongovernmental entity, unless that obligation is assigned voluntarily by the spouse, former spouse, child of the debtor, or such child s parent, legal guardian, or responsible relative for the purpose of collecting the debt. 11 U.S.C. 101(14A). 18

19 Domestic Support Obligations A debt owed to a spouse which is in the nature of alimony, maintenance, or support and established by agreement or Court order. Obligation must be owed to, or recoverable by, a spouse, former spouse, or child of debtor, or child s parent/guardian/relative, or government unit. The definition broadens the scope of who qualifies as a bankruptcy creditor This language provides protection for a direct award of attorney s fees to an attorney representing a custody litigant Designation of a DSO is not binding on the bankruptcy court Court can look behind language to determine nature of debt 19

20 Factors to Determine DSO/Property Settlement Exception 1) Intent of the parties or the family court at the time the obligations were created 2) Respective financial situation at the time of the obligation 3) Actual substance and language of the agreement/order 4) Function served by the obligation at the time of the agreement 20

21 Negotiating and Drafting Has Bankruptcy been filed Yes or No If not, what s the likelihood of a bankruptcy being filed Divide marital assets and debts If you want an obligation to survive bankruptcy, make sure it s worded as a DSO Are Attorney Fees in the DSO? 21

22 SEPARATION AGREEMENTS Drafting Separation Agreements that work Properly dividing debts between spouses Document intent to create a support obligation Include as many factors as possible that the court considers Include the intent of an Attorney Fee provision Consider Domestic vs. Bankruptcy Law in value of assets 22

23 Best Practice Strategies Enforcement of Judgment for Attorney Fees Effects of Wage withholdings prior to Bankruptcy Non-Exempt assets worth fighting over? Marital exception and equity in the house. Executing a Judgment and the Auto-Stay. Attorney Fees as preferential transfer or contemporaneous exchange. Tax refund, and Dependants. Conflict of Interests between BK Atty and DIVx Atty Credit Card payments from a client prior to Bankruptcy Inside transactions to family members for debts prior to filing BKY 522 Analysis, Where did the debtor live prior to filing BKY determines what states exemptions to use. Timing: tax refunds, foreclosure, Judgments, DSO, Debt on Date of filing, Assets on date of filing. Motion for relief to PDL? 23

24 FORECLOSURE Foreclosure affects everyone All economic brackets Factors contributing to foreclosure Irresponsibility Unemployment Loan Modification process Divorce Bankruptcy and Automatic Stay Cash For Keys, Short Sale, Deed in Lieu 24

25 FORECLOSURE During automatic stay Keep House or Not Chapter 7 Reaffirm Debt Renegotiate Back payments Chapter 13 Back Debt Loan Modification Junior Mortgages Timing Chapter 7 Chapter 13 25

26 PREFERENTIAL TREATMENT Must disclose payments to individual creditors of $600 within 90 days prior to filing Only applies to Chapter 7 Retainers in Trust Earned Fees 26

27 TIDBITS AND TIPS Ethics Bankruptcy or Divorce First Fee Separation Agreement Tighter after bankruptcy Domestic Support Obligations Non-Dischargeable Foreclosure 27

28 TIDBITS AND TIPS Joint/Individual Bankruptcy Financial/Property Statements Conflicting Statements = Perjury Valuation in divorce vs. bankruptcy Why NOT to be a bankruptcy attorney (intentionally or otherwise) All attorneys have to certify the accuracy of their clients bankruptcy schedules and list of assets, as well as the ability to make payments, or face sanctions. 28

29 CONCLUSION Ethics/Risk Avoidance Ethical obligation to discuss timing Ethical obligation to discuss joint vs. individual Can you represent a couple/individual in bankruptcy and divorce Economic Survival after Divorce Separation Agreements Tighter after bankruptcy Division of Debt to protect your client Prevent spousal revenge The relief in divorce isn t the same relief as in bankruptcy Contempt vs. Sanctions Setting the spouses free from each other 29

30 REAFFIRMATION AGREEMENTS Written agreement between debtor and creditor to reaffirm the debt Generally terms are the same as the original loan plus a substantial payment of arrearages. Generally, reaffirmation agreements are a bad idea because the same results can be achieved simply by the debtor staying current in the payments. Binding only when: Agreement is enforceable under applicable non-bankruptcy law; Agreement was filed before the discharge; and Approved forms are used 30

31 Kenneth Paul Carp Amy L. Gervich Charles E. N. Rosene

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