Exemption for alimony and qualified retirement accounts

[CoBelle]

Need help. My state has exemptions for both alimony and qualified retirement funds. But my trustee (beeahche) objected to my exemptions and a hearing is scheduled for May.
Does the trustee have to prove that my alimony (that accumulated for two months in my bank accountthat I was saving to pay my fed taxes since I don't send in $ quarterly)is not exempt for some reason OR do I have to prove that it is exempt? If I have to prove, is it enough to trace the alimony payments that funded the account (to show it wasn't commingled) or must I do something else? Likewise, as long as I prove that the retirement is a qualified account, is that all I have to do? Finally, I saved some alimony paid for health expenses in a separate account (actually an HSA account which is not exempt but funded with my alimony which is) ...I'm just going to treat that like another bank account....so if I prove that it was funded ONLY with alimony, will that suffice?

[Peeps]

Hate to say it, but your trustee might be challenging your exemptions because alimony is not considered exempt property under Colorado bankruptcy law. Even if you can show the money was not comingled, it could still be at risk.

Just curious: what did you list as the law providing the exemption for your alimony on your schedule C when you filed? Knowing your original premise for claiming the exemption might help spur some answers to your questions about what might be helpful for proving your claim.

[CoBelle]

Actually it is exempt under something (u) (too late for me to look it up) and yes I exempted it under that exemption on my schedules. The trustee said that she needed more info because X had said that I had commingled and That is why she was questioning it. I responded that I hadn't commingled my alimony with any non exempt funds....there was one social security check that went into that account days before I filed and after my alimony had ended.

[helpmeout]

Hate to say it, but your trustee might be challenging your exemptions because alimony is not considered exempt property under Colorado bankruptcy law. Even if you can show the money was not comingled, it could still be at risk.

Just curious: what did you list as the law providing the exemption for your alimony on your schedule C when you filed? Knowing your original premise for claiming the exemption might help spur some answers to your questions about what might be helpful for proving your claim.

Just looked it up and whild Colorado doesn't give the choice of uisng the federal exemptions (the Federal Bankruptcy laws leave it up to the state to determine which exemptions can be used), it DOES exempt domestic support. Spousal support most definitely qualifies under this category.

[Peeps]

ok, maybe I was looking at the wrong list. Good luck CoBelle.

[HHM]

Here is what that section actually says

13.54-102
(u) Any court-ordered domestic support obligation or payment, including a maintenance obligation or payment or a child support obligation or payment, if the child support obligation or payment meets the requirements of section 13-54-102.5;

And here is what 13-54-102.5 says

(1) Any past or present child support obligation owed by a parent or child support payment made by a parent that is required by a support order is exempt from levy under writ of attachment or writ of execution for any debt owed by either parent. A child support payment is no longer exempt under the provisions of this section if the recipient of the payment intermingles the payment with any other moneys.

(2) A child support payment is only exempt under the provisions of subsection (1) of this section after the payment is deposited in a bank, savings and loan, or credit union account if the account is a custodial account for the benefit of the child designated for child support payments and if no moneys other than child support payments made pursuant to a support order or interest earned on the moneys in the account are deposited into the account.

My suspicion is the Trustee is going to argue commingling and I suppose conceivably may be going further to argue that section 13-54-102(u) only applies to child support.

[CoBelle]

I agree with you HHM. RAther broad wording dontcha think? If using straight linguistics to decipher this, the use of the second 'or' separating the spousal maintenance from the child support should mean that spousal is exempt and child support is exempt IF it is not commingled. But of course the law seems to mean whatever the court wants it to mean. So, I should add that my spousal support wasn't commingled with any NON exempt funds as it was my only income for all these years.

The objection and my answer resulted in a hearing date set for May. Yesterday I rec'd a call from the attorney for the Trustee (you probably know her HHM...Maria F----) who said she wanted to 'talk'. In a separately filed AP against the lender in re my investment property, this attorney said that she knew that the judge was 'fed up ' with me and that I'd never win anything...how kind of her!.....so I can't say that I have any faith at all in her wanting to 'talk'. She is trying to extort money from the lender (my friend) to 'make it all go away', but the lender has no money so she can't pay.

HHM, if you don't mind, will the Trustee have to prove her case or do I have to prove that I haven't comingled and that my retirement plan is qualified? (Don't want to be caught with my panties down in the hearing.)

[helpmeout]

I would go in with proof that there is no co-mingling and that your retirement plan is qualified. And go in with the arguement that a domestic support obligation exempt and that spousal support IS a domestic support obligation because it is.

[CoBelle]

Thanks everybody!
I talked with the Trustee and she gave me the good news (re this one thing) that she is withdrawing the objection. YEA! She admitted that beccause the code only gives her 30 days to object that there is a tendency to object to most anything and then afterward go through it to see if there is a reason to continue. She was very nice and I certainly appreciated that.

I had spoken with X's attorney earlier that day and was shocked that he knew that the Trustee was working on a settlement in re another lawsuit (not from a creditor but from my homeowners association who had been trying to get out of their covenant protected duty to irrigate my pasture...they filed an injunctive relief suit and when the house sold their suit went down the drain BUT I had a countersuit asking for property and personal injury damages. The HOA offered the Trustee $5k to 'settle' but I am pretty sure I'd win my countersuit and at least $20k. I knew that it woudl cost the HOA 20k at least to defend and I'd hoped that they would call ME to settle. But now the trustee might settle for peanuts, although I wonder if she can settle the personal injury portion? And since the convenants say that I can bring suit and get attoreny fees paid if it involves the HOA breaking the covenannts which it does....woudl I also be out the $10k so far in attorney fees if the trsutee settles? Finally, if the trustee has already abandoned the property and if I 'm already discharged, can she still act?