objecting to a discharge

[rae2009]

I have a question regarding a friend of mines divorce and her soon to be ex-husband filing a bankruptcy in the middle of the divorce.

On his Schedule F he listed that he owes her $7000, this is not related to his back child support or domestic wages of any type. The $7000 he owes her is half of a credit card that he has charged up. The judge in the divorce hearing has already entered an order saying they are both responsible to pay half of this credit card. His name is not on the card at all, everything is in her name. With him listing this he is expecting to be discharged of this debt, but my understanding is that he can't be discharged of the debt because it would violate a court order? Am I right on this? If so, if anyone has any experience with filing an objection to discharge that would be great. I have assisted her in filing a POC against him for the domestic wages he owes her, but I'm not familiar with filing the objection to discharge.

[JRScott]

It's a gray area. However most likely since it is credit card debt it is dischargeable. Let it go. Revenge always leads to more harm to the person seeking revenge than to the target of revenge. It is not a healthy state. If she wants to move on she needs to let it go. I'm not familiar with the POC you refer to but if it is an effort to seek payment of past wages as though she were a paid worker prior to divorce it will most likely be discharged as well. Only Alimony, Child Support and Property Settlement from divorce survive a bankruptcy.

[poorold]

if he was the primary wage earner and her goal is to carry her debt and via the divorce get sufficient income from him to pay for her lifestyle, why doesn't she file too?

It seems they would both win out then and he might even be "grateful" if she told him what and why she was doing this.

Why add stress because of anger and immaturity (I'm not singling her out, for all I know the guy is a complete jerk and she is just struggling to survive), when a better path for all involved is possible--especially if there are children involved.

[OhioFiler]

11 U.S.C. Section 523 (a) (5)

A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt -
to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that -

(A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise (other than debts assigned pursuant to section 402(a)(26) of the Social Security Act, or any such debt which has been assigned to the Federal Government or to a State or any political subdivision of such State); or

(B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support;

[2manybills]

It sounds to me like the Judge made him equally responsible for the debt to the creditor not to her. She should consult with her attorney.

[sdbird101]

Given this, looks like since it is not alimony or child support, he can discharge it. I'd get a lawyer if you really want to fight it.

Quote:
A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt -
to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that -

(A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise (other than debts assigned pursuant to section 402(a)(26) of the Social Security Act, or any such debt which has been assigned to the Federal Government or to a State or any political subdivision of such State); or

(B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support;

[AngelinaCatHub]

It is my opinion that as a Court order within a divorce it is not dischargable under the above mentioned law. As an order, it was also considered a mutual settlement within the divorce and to fulfill the divorce as to it's termination. It is legal and binding as a non exempt debt by Court Order. (I'm not a lawyer, but this is how I read it.) 'Hub

[AngelinaCatHub]

A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt -
to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that -

[sdbird101]

A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt -
to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that -

[rae2009]

I'll give a few more facts, but after reading a little more. He is not eligible to be discharged of this debt because a discharge would directly "violate" the court order established in family court.

The divorce is not final yet, what was supposed to be their last hearing to finalize the divorce (dragging because of child custody) he showed up to their hearing 30 minutes late because he was at the federal court house filing for BK. This guy is probably one of the worst men I have ever met. He has had 4 attorney's quit on him in the duration of the divorce, and now is Pro Se. On both the divorce and BK stuff. Anyway, he has awful credit and has never gotten anything under his own name. All of the credit cards and bills he charged up, she is stuck with because it is in her name. So, she's NOT seeking revenge, that's probably the most ludacrious way you could look at it. She's getting stuck with a ton of bills that she CAN'T afford to pay all on her own. He has never been an income provider because he has been in a lawsuit with the government for over 8 years. There are assets to be recoverd and there will be a payout. He's trying to hide assets, but her attorney has already notified the trustee.

The objection to discharge would be in regards to the half of the credit card the family court judge has ordered him to pay. She will be filing a claim for child support, which is absolutely different than objecting to his discharge. I wanted to make sure my interpretation of the law was correct. (I am a paralegal but always welcome extra input) Her attorney isn't a BK attorney, so she doesn't know all of the laws. I'm doing the leg work and research for her.

[jadams]

It really would depend on exactly how the obligation was made.

If it's just a division of martial debt, then it's dischargeable. It needs to be alimony, maintenance, or support to not be dischargeable. Since this is half of a credit card bill, I would lean towards it not having been specified as support.

It's possible her lawyer could have had everything worded such that it is maintenance or support, but I wouldn't count on it without checking.

Look into it now while the BK and divorce are both still pending. It's possible her lawyer could fix things.

What is the rest of your friends debt situation post-marriage going to look like? I wouldn't do it over just the $7000, but is it possible she would benefit from filing her own BK?

A clean slate after the divorce could be good for her mental health and finances. My sister was in the same situation with a bad marriage and all of the debt incurred in her name. Her debt load was very high and she had a lot of resentment and anger building up every month she sent in her payments. I think it was a roadblock to her recovery -- she only started to really move on after making a serious dent in the balances.

[AngelinaCatHub]

sdbird: Don't get me wrong. I hope he has to pay but there is the letter of the law, and that is what I am reading (I'm not a lawyer) and it sounds exclusionary to me. However the wife with the history the paralegal stated would not likely see either the Judgment paid if not discharged, or any alimony. Sounds like this guy us a scumbag. With what I read so far, he is attempting to slither his way out of responsibility. 'Hub

[2Bshinyandnew]

Unless the debt is clearly in the nature of support, spousal or child, it is dischargeable in BK. 1/2 of $7000 credit card debt sounds like division of liabilities, which is dischargeable.

If the divorce docs had stated one spouse owed the other $3500 as back alimony it would not have been dischargable.

I believe the poster's friend can take the ex back to court and attempt to modify the agreement, but as far as BK goes, the debt is dischargeable.

[LuciluS]

I'm in agreement that the debt will be discharged by his BK IF his soon to be Ex's attorney's information regarding assets possibly not disclosed in his bankruptcy get his Bankruptcy Case Dismissed. Yes, this guy sounds like a scumbag. Sorry it took awhile for the soon to be ex to realize that.

I had a Credit Card that was in my name, my husband's name & my Ex's name. We thought we had removed his name right after the divorce. I used paperless statements (Never Again!) oon the internet & the screen I looked at never showed all the names. It was stated in our Property Settlement of the Divorce Decree I was responsible for this Credit Card.

When we met with our BK attorney late last Sept. he told me it didn't matter what the divorce decree showed, my ex would be liable to pay the balance and it was large. His wife paid it off in Nov. of last year & I will be making monthly payments after our BK to her (who happens to be my twin sister...they got married this past Jan. LOL!). My attorney wanted me to stick it to my ex as he is a Banker and Attorney stated he should have checked his credit reports. But I knew I couldn't do that as my twin sis was dating him.

Here's hoping he lied on his BK papers.

[rae2009]

filing BK herself is not an option, she works at a bank and it would cost her her job. as far as the order reads it just says "Each party is responsible for one half of the minmum monthly paymen necessary re: the ________ credit card", which is where the 7000 he listed on his schedule comes in. the amount owed is 14k. he is a scumbag and went and filed this bk simply to stick it to her. he's never had a solid job, always has an excuse. being a whistleblower is his favorite. he says he's been let go from two jobs for being a whistleblower. i'm just trying to figure out what she can do to hopefully get some funds recovered. she won't ever see any money from him, but if the bk goes through and the trustee is able to recover assets she'll at least get the back child support (maybe only partial) but, a little will help her out more than none. he's doing everything he can to drag her through the mud and this was another move. he's listed her house, which is financed through the bank she works for. if the loan was filed on, she would lose her job. thanks to her attorney it probably won't happen now because her attorney spoke with the trustee prior to the 341 meeting and she went to the 341 meeting. she caught him in several lies and called him out on those lies. anyway, it's such a long mess that i could go on all day. i just want him to have to pay the consequences for his actions.