Section 4.50 Alimony, Maintenance, or Support

• Library: Bankruptcy Practice (2007 Ed. + 2015 Cum Supp)

H. (§4.50) Alimony, Maintenance, or Support

The BAPCPA changed 11 U.S.C. § 523(a)(5) to simplify the operative provision, which now provides that the discharge does not discharge an individual debtor from any debt “for a domestic support obligation.” The BAPCPA also added a definition for “domestic support obligation” in 11 U.S.C. § 101(14A), which contains the important parameters for this nondischargeability section:

The term “domestic support obligation” means a debt that accrues before, on, or after the date of the order for relief in a case under this title, including interest that accrues on that debt as provided under applicable nonbankruptcy 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.

The term “domestic support obligation” replaces the former designation of “alimony, maintenance, or support.” It includes postbankruptcy accruals and changes the treatment of assigned debts. The reference to postbankruptcy accruals “including interest that accrues” is most likely intended to address the requirement that payment of postpetition domestic support obligations is a condition of plan confirmation and other discharges.

The elements of a dischargeability complaint under § 523(a)(5) are as follows:

· A debt is owed to the debtor’s spouse, former spouse, or child (or the child’s parent, legal guardian, or responsible relative) or a governmental unit.

· The debt is for an obligation in the nature of alimony, maintenance, or support.

· The debt is established or subject to establishment by a separation agreement, divorce decree, property settlement, or other order of the court or determination by an applicable governmental unit.

· The debt is not assigned to a governmental entity except for purposes of collection.

Unlike the other nondischargeability sections, which are strictly construed in favor of the debtor, the exceptions to discharge for domestic relations debts are liberally construed in favor of the objecting creditor. In re Portwood, 308 B.R. 351, 355 (B.A.P. 8^th Cir. 2004); In re Swartz, 339 B.R. 497, 501 (Bankr. W.D. Mo. 2006) (Venters, B.J.); In re McKinnis, 287 B.R. 245, 250 (Bankr. E.D. Mo. 2002) (McDonald, B.J.) (“Courts, however, should more liberally construe the exception for support or maintenance owed to a spouse, former spouse or child of the debtor contained in § 523(a)(5).”) (citing Kline, 65 F.3d at 750–51). But the burden of proof under § 523(a)(5) is on the party asserting that the debt is nondischargeable. In re Woods, 309 B.R. 22, 27 (Bankr. W.D. Mo. 2004) (Dow, B.J.).

The most common defenses to a nondischargeability action under § 523(a)(5) have been the following:

· The debt at issue has been assigned. See:

Ø In re Leser, 939 F.2d 669 (8^th Cir. 1991)

Ø In re Lutz, 128 B.R. 244 (Bankr. W.D. Mo. 1991) (Koger, C.J.)

Ø In re Donelson, 153 B.R. 995 (Bankr. W.D. Mo. 1993) (Federman, B.J.)

Ø In re Mozingo, 153 B.R. 276 (Bankr. W.D. Mo. 1993) (Koger, C.J.)

Ø In re Godden, 156 B.R. 36 (Bankr. W.D. Mo. 1993) (Koger, C.J.)

· The award is in the nature of a property settlement rather than alimony, maintenance, or support. See:

Ø In re Morel, 983 F.2d 104 (8^th Cir. 1992)

Ø In re Dimmitt, 132 B.R. 617 (Bankr. W.D. Mo. 1991) (See, B.J.)

Ø In re Smith, 152 B.R. 604 (Bankr. W.D...