Hi, thanks for your question. You should hire a lawyer for specific legal advice. No attorney client relationship is created here.
The matter will really come down to what type of debt is owed. Debts related to domestic support obligations are not dischargeable in bankruptcy, and no adversary objection is needed.
If the debt is a property settlement, then the debt could be dishchargeable.
You should allege the order and timeline for objections as a defense in any action she may be bringing.
This is a general order, giving creditors at least 60 days from the amendment, or the last date to object per the 341 hearing notice.
If both of these dates has passed without any objection or any other extensions granted, that is a defense to the claim. You should still answer any complaint bringing that up as one of the defenses. Talk to your bankruptcy and divorce/family law attorney to review the specifics, what the claim was regarding, and its potential dischargeability in the case.
Let me know if you have any other questions.
All of the debts that defendant owes his former spouse are outlined in a prenuptial agreement that has been deemed enforceable by the Family Court.
The agreement clearly defines three (3) debts, none of which are Domestic Support Obligations.
1) Property Settlement Payments – the agreement explicitly states that these property settlement payments are not alimony and not tax deductible. Furthermore, the agreement also states that both parties waive all past, present and future alimony and equitable distribution.
2) Repayment of a personal loan with Interest – plaintiff gave the defendant a personal loan prior to both the prenuptial agreement and the marriage and the agreement calls for repayment of this loan.
3) Recovery of legal fees - a provision in the agreement entitles a party to recover legal fees if the other party fails to abide by the agreement.
A very solid argument can be made that none of these debts fall under the Court’s §523(a)5 exceptions to dischargeability – none of these debts are Domestic Support Obligations.
The question is what arguments can be used to demonstrate that these debts do not fall under the Court’s §523(a)15 exceptions either?
The online editor cut me off before I was able to thank you in advance.
Unfortunately that would be providing legal advice, which this forum prohibits the creation of an attorney client relationship. If the debt was not domestic support obligation then it should be discharged as just property settlement. If the objection was not timely, the matter can be dismissed on that ground. the creditor would have to prove that the debt IS a DSO, the debtor doesn't have to prove that it isn't. Showing the pre-nup is a good start as evidence that it is not, which can rebut the creditors argument.
I do concur that it sounds like they are not DSOs based on the limited info provided here though
I am new to the forum and respect its rules. You provided me excellent service and I will mark this answer accordingly. In closing, can you refer the defendant to an online reference to the actual law and perhaps a prior decision based on this law so that he can at least be knowledgeable about his defense? His attorney is not answering these questions and it is too late for him to substitute. Summary judgment on the matter is due in two weeks.
http://www.law.cornell.edu/uscode/text/11/523 there is the exceptions to discharge rule. surprisingly , google is a great tool, google the code section along with keywords like bankruptcy, and domestic support obligations, divorce property settlements along with the state name to pull up local decisions. Check your local bankruptcy court online website, they may have prior decisions posted to search. I use a legal search tool called FastCase, but there is a fee for it.
Hope that helps. good luck. Sounds like you are on the right track.
Thank you again for this, but the defendant has already seen this site (found by Googling when the complaint for nondischargeability was first filed). It is clear and nicely formatted, but if this is the entire verbiage of the law, it is overly broad and must be subject to wide interpretation.§523(a)(5) for a domestic support obligation; §523(a)(15) to a spouse, former spouse, or child of the debtor and not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a governmental unit; The defendant needs to see how this has been argued in the past. He has put extraordinary effort into trying to help himself, but now he is out of time and has exhausted all of his resources.
The debtor should address specific elements of the complaint as filed in the adversary, and provide as much evidence toward it as they can. Overcoming the presumption requires a showing that the debtor cannot pay the debt and still take care of himself, his dependents, and his business, or that discharging the debt would result in a benefit to the debtor that outweighs the harm that would be caused to the former spouse or child by non-payment.
Also, a decent article for review can be found here. http://www.brazengordon.com/Dischargeability.pdf
As always, with a complex matter such as this, it is strongly recommended to hire bankruptcy counsel to assist.
Good luck to you. thanks for your questions.
The article that you referred me to is excellent and very much appreciated.
The defendant has always had bankruptcy counsel, but his counsel is not even attempting to make any specific arguments other than reciting §523(a)(5) & §523(a)(15) and simply stating that all these debts do not fall within these exceptions and are dischargeable. Summary Judgment is in two weeks and time simply does not allow for substitution of attorney.
Regarding debtor’s ability to pay, plaintiff has already cited BAPCPA which he alleges eliminates this defense. He quotes a recent ruling: “the debtor does not have an ability to pay the debt or the benefits of discharging the debt outweigh the consequences of nondischarge.” Tarone v. Tarone, (In re Tarone), 434 B.R. 41, 49 (Bankr. E.D.N.Y. 2010))
Thank you again for your answers and demonstrating the true value of this forum.
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