Dave,
We're not really dealing with a case law but the plain meaning of the statutory provisions. 523 (a) 2, 4 and. 6, the sections dealing with fraud, theft and the like, require the filing of an adversary complaint within 60 days of the meeting of creditors under 523 (c). 523 (c) does not require the filing of an adversary complaint to object to the discharge of a DSO under 523(a)5.
Actually, the section dealing with debts not discharged by a 13 is not technically 523 (which applies to chapter 7) but 1328. 1328 incorporates some of 523, and provides that DSO debts under 523 (a) 5 are likewise not dischargeable in a 13. 1328 also incorporates debts under 523 (a) 2, 4 and 6 as not dischargeable but only in those cases if an objection is filed under 523(c).
What creates a possible issue here is that while 523 (a) (15) makes a debt arising from equitable distribution not discharged in a 7, that section is not incorporated by 1328. Therefore, equitable distribution obligations can be discharged in a 13.
So the if the attorney fee award is clearly in the nature of support, it is clearly not dischargeable and no adversary complaint is required.
However, if there is a question of whether the award of attorney fees is in the nature of support or equitable distribution, you may want to file an adversary complaint to have the bankruptcy court make that determination, though you would not be bound by the sixty day deadline to file it. Or you can simply argue in state court (as you appear to be doing) and if the judge agrees that it was support, then you should be done. It's a nondischargeable support obligation.
Just my two cents.
See what others have to say.
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Jason Roth Esq
Oradell NJ
(201) 265-3400
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Original Message:
Sent: 05-19-2013 20:58
From: David Perry Davis
Subject: Bankruptcy / Family Q: 523(a)(5) Domestic Support Obligation -- Adversary Proceeding / objection needed?
This is one of those things you just "know", but when you need to brief it, it's like trying to grab a slippery eel.. where is it?
Is it necessary to file an adversary proceeding (or to otherwise object) when a debtor attempts to discharge a Domestic Support Obligation (523(a)(5))?
Or, can the beneficiary of the DMO simply file to enforce in State Court / Family Part and say "this debt was not and could not be discharged - please enforce
More info below if necessary to answer the question. I'm briefing it, so a cite (not just "yes / no"... I'm pretty sure it's "no") would be most appreciated.
H earns $130,000. W a stay at home mom of 3 kids, earns $8 per hour.
H agrees to pay $2500 counsel fee as part of PSA giving her alimony, CS, custody.
H files CH 13.
W moves in Family Court to enforce $2500 counsel fee award (among other things).
H says "W received confirmation of plan and never objected / never filed adversary proceeding."
My understanding is that W doesn't need to do this, that a DMO is simply non-dischargeable under 523(a) (5).
(a) 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 -
...
(5) any debt owed to a spouse, former spouse, or child for alimony, maintenance, or support.
I've found a couple of BK attorney blog entries that state this ("It is not necessary for a spouse to file a complaint objecting to the dischargeability of a family law debt ... a Section 523(a)(5) domestic support obligation ...")
Does anyone have a cite I can give the court to this effect? Either statute or case?
THANKS
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David Perry Davis, Esq.
112 West Franklin Avenue
Pennington, NJ 08534
Voice: 609-737-2222
Fax: 609-737-3222
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