Transcript

Lauren Powell: Domestic support obligations. Payment of those, so either child support, spousal maintenance or alimony are not dischargeable in any form or fashion.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly Draper: Today we’re excited to welcome Lauren Powell to the Texas Family Law Insiders podcast. Lauren is the founder and president of Powell Law Offices PC, which has offices in Grapevine and Frisco, Texas. She’s also an adjunct professor at University of North Texas School of Law. Lauren practices family law, estate planning and bankruptcy. She’s nationally board certified in consumer bankruptcy law through the American Board of Certification. Lauren is a sought after panelist and speaker at national and local legal conferences, and is known for her depth of knowledge, friendly personality and tenacious courtroom advocacy on behalf of her clients. Thank you so much for joining us today.

Lauren: Thank you for having me. Happy to be here.

Holly: So why don’t you start by telling us a little bit about yourself?

Lauren: Sure. So I was born and raised in Michigan, in a suburb just northeast of Detroit. Went to school and law school at Wayne State University in Detroit and started my legal career in Michigan. When I was a baby attorney right out of law school, I worked at Deloitte and Touche for a couple years. So I have some tax law knowledge and background which helps me in my practice today. And then I transitioned into bankruptcy and practiced bankruptcy law exclusively in Detroit until 2009, when I moved to Texas.

Holly: So how would you describe your current practice?

Lauren: My current practice is primarily family law, then some probate and bankruptcy. And we basically strive to work with our clients in all aspects of their life and all aspects of their legal needs. And if it’s an area we can’t help them with, then, you know, we’ll refer them out to a trusted colleague. But family law, probate and bankruptcy tend to all intersect at times. So it’s rewarding for me to be able to help my clients in more than one area. We have offices in Grapevine in the Dallas Fort Worth area, and then another office in Frisco, and are looking at opening up an office in Dallas sometime soon, so that I can be physically closer to my clients in Dallas in the Dallas area.

Holly: So do you also have an office in Michigan?

Lauren: We do. And in Michigan, I still practice there, I still have an active license there. I still am close with many of my colleagues and judges there and I take cases by referral. And I only take cases obviously, that I can work on remotely. Most of bankruptcy is still remote, meaning we’re doing trustee meetings and things like that by telephone. And by WebEx or Zoom for court hearings. That will probably change once COVID dies down a little bit and things start to open up to be more in person. I will likely really cut down on my caseload in Michigan and just focus here in Texas. Because although I’d like to, you know, I can’t be two places at once. So yes, I do have some cases in Michigan, but most are here in Texas.

Holly: Do you have staff or other attorneys working for you in Michigan or just here in Texas?

Lauren

I do not just here in Texas. I’ve got associates here in Texas and support staff here in Texas. And I’ve got enough colleagues in Michigan that if something comes up or you know, somebody needs something, one of my clients need something usually someone will jump in to assist me. And I’ve got a virtual office up there. So there is somebody there to, you know, accept packages from clients where clients can go and drop things off. So it works out well. But I don’t want to be spending my life on an airplane. So like I said, when things are back in person up there, then I’ll likely cut down a lot of my caseload there.

Holly: So today we’re going to talk primarily about the intersection of family law and bankruptcy. As anybody who’s been doing family law for very long has certainly seen bankruptcy issues crop up in their cases. What are some of the key bankruptcy issues that family lawyers should be aware of?

Lauren: So just a little background on bankruptcy, you know, the two areas of bankruptcy that family law attorneys are going to run into the most, or two types of bankruptcies, are chapter sevens which are liquidation bankruptcies. Meaning the debtor, the person filing the case is not paying anything on their debts that they’re discharging through the bankruptcy. Then there is a chapter 13, which is a repayment plan where the person filing the case is, you know, making a monthly payment that’s going towards all of their debts in the chapter 13. There are different reasons, obviously to file one over the other. And that’s kind of outside of the scope of what we’re talking about here today.

But when family law attorneys come across bankruptcy issues, it normally has to do with two areas of bankruptcy. The first would be the automatic stay. So when someone files a bankruptcy case, there’s something called the automatic stay that goes into effect that protects that person from their creditors, and basically says, hey, if you’re a creditor, or you’re having any kind of legal suit, or anything against this person who filed bankruptcy, you need to stop. And you need to stop yesterday, basically. And then the other area we see are dealing with debts. So domestic support obligations, the bankruptcy law, the code actually uses the term domestic support obligations, which include child support and alimony or spousal maintenance.

So that’s an all encompassing term, it’s not just child support. Basically, the automatic stay is the area where family law attorneys can really unintentionally get in trouble. Because there is no intent required to violate the automatic stay. So if you continue a suit or you continue, you know, an enforcement in family court or something against someone who’s filed bankruptcy, and you run afoul of the automatic stay, the bankruptcy judge doesn’t care whether you meant to do it or not. The test is whether it was actually violated. And if it was, that subjects you to pay sanctions, and attorney fees to the person who filed bankruptcy, otherwise known as the debtor. This has happened to some family law attorneys.

So my advice just generally is when you see a suggestion of bankruptcy filed in a case, or anyone even says the word bankruptcy, stop. Stop what you’re doing. Don’t schedule hearings, don’t do anything until you talk to a bankruptcy attorney. I have a lot of other family law attorneys who reach out to me consistently for advice when a bankruptcy issue comes up in case. I’m always happy to help colleagues, not an issue. And judges feel the same way. You know, most judges, family law judges, whenever a bankruptcy issue comes up, they will stop. They don’t want to hear about it. They don’t want to do anything. They don’t want to violate the stay, which is smart. But technically, the stay actually does not apply to certain family law cases.

There is a whole list of cases which it doesn’t apply to, you know, for example, it doesn’t apply to establishment of paternity. It does not apply to establishment or modification of child support. It doesn’t apply to enforcement of child support. It does not apply to child custody or visitation. Those are the terms used in the bankruptcy code. Of course, here in Texas, those are conservatorship and possession and access. It does not apply to those. It does not apply to cases involving domestic violence. And it does not apply to divorce other than property division. If you are getting to the point where you’re getting ready to enter a final decree that includes property division, and there’s an act of bankruptcy, the stay applies to that.

So you will need to get relief from stay from the bankruptcy court. And you may in certain circumstances have to have the bankruptcy court actually approve the property division that is happening in the divorce. Most judges however, family law judges will not and do not want to try to figure out when the stay applies and when it doesn’t, understandably. So they will tell you please go to the bankruptcy court and get relief from the automatic stay. And that’s something that I also helped my colleagues with. We have to file a motion, we have to get an order entered and signed by the bankruptcy judge that allows us to proceed with the family law case.

So if there are potential, you know, landmines there, my advice to everyone I talked to is please just stop and call me. Or call another bankruptcy attorney if you have a relationship with a bankruptcy attorney who also does family law. I think they need to know both to kind of, you know, exist in this area. Don’t do anything, don’t get sanctioned. Practice wise, bankruptcy is different from family law. Family Law has a lot of gray areas just because we’re dealing with people, we’re dealing with their lives, their children, you know, their property. Bankruptcy does that have a lot of gray areas. In bankruptcy in the federal bankruptcy court, we live and die by the rules, and we live and die by deadlines, and they are strictly enforced.

The bankruptcy judges do not give grace, they don’t feel they are allowed to give grace most of the time if if either rule is violated, or a deadline is missed. So understand that it’s not like family court where thankfully we all can give each other grace most of the time, and the judges understand that things happen. And there are gray areas. That is not what it’s like in bankruptcy court. So again, if you violate the stay, even unintentionally, there are consequences for that, and pretty serious ones. So please do not proceed until you talk to a bankruptcy attorney.

Holly: One of the things you mentioned was that child support enforcement is not covered by the stay. And you also mentioned that domestic support orders are covered. So can you kind of flesh that out a little bit and tell us what you can and cannot do on support issues?

Lauren: Yes, so the modification or establishment of domestic support obligations. So, you know, child support, spousal support, alimony, though the automatic stay does not apply to those, okay, the automatic stay also does not apply to wage garnishment. So if somebody’s wages are being garnished for child support, or a spousal maintenance obligation, that doesn’t stop that. It also does not stop the criminal proceedings against a debtor. So if you are, you know, looking to enforce child support, and you’re asking for contempt, it typically does not stop those. However, there is some gray area where some courts have ruled differently on whether you are requesting contempt or not when you’re filing an enforcement.

So I tell my colleagues that anytime you’re doing an enforcement for child support, regardless of whether you’re requesting contempt or not, always make sure if there’s an active bankruptcy to get relief from the automatic stay to be safe, because there are certain courts that will rule differently than other courts on that. And then, you know, enforcement of property division, the automatic stay does apply to that. So make sure to, you know, get relief from the automatic stay before proceeding with any of that.

Holly: So you also talked about sanctions and how attorneys need to be really careful of proceeding if there’s a bankruptcy going on. What sort of notice is sufficient to rise to that level? If they’re, you know, if I’m doing a divorce, and my client is like, oh, I think he may have filed for bankruptcy. Is that enough notice that I better stop or does there have to be suggestion filed in the case?

Lauren: Nope. Constructive notice is enough. If somebody comes in and says, hey, he said he was going to file for bankruptcy, and actually filed for bankruptcy, that’s enough to get sanctioned. So again, just be very careful. Now, when someone files bankruptcy, they are supposed to list their spouse as a potential creditor in the case. So their spouse should be getting, you know, notice that the person filed bankruptcy. But even if you don’t have an official notice, or no suggestion of bankruptcy is filed in the case, and somebody tells it to you, that’s constructive notice, and that’s enough to be sanctioned. So you have to be careful.

Holly: So if our client meant mentions that the opposing party has talked about bankruptcy, how much of an obligation do we have to dig into that?

Lauren: To protect yourself, I always tell my colleagues stop what you’re doing and just tell your client, hey, I just got to stop and look real quick and talk to a colleague of mine who practices bankruptcy. And literally what I do is I will go into the bankruptcy court’s system, and I will look and see if that person filed bankruptcy. Or if you have a pacer account as an attorney, you can go on to pacer and do a nationwide search to see if the person has filed bankruptcy. If there’s no active bankruptcy filed, you can proceed, but just kind of keep your eyes and ears open.

And I would say periodically check because sometimes debtors will file cases themselves and they won’t list you know without the help of an attorney and they won’t list their spouse. So sometimes you’re not going to get formal notice, but you are considered to have constructive notice if you have any idea, that that person may file bankruptcy. So I recommend that you check initially and then continue to check, you know, about once a week or so just to make sure nothing is filed without you knowing it because the automatic stay applies. Immediately it goes into effect, it’s like our standing orders, it goes into effect immediately upon the filing of the case with the court.

Holly: Does that automatic stay prevent us from taking any action in the case to move the ball forward? For example, can we conduct discovery during an automatic stay? Or does it just apply to just apply to court proceedings?

Lauren: So yes, you can you can conduct discovery. Okay. It applies to any action that can be taken against the debtor. So that becomes a question of what does the court deem how does the court define that? Right, how’s the bankruptcy court define any action to be taken against the debtor? There are lots of cases that deal with that definition. Basically, any action taken that as adverse to the debtor is what we look for. So in my opinion, discovery isn’t covered in that. But again, I’m always going to default to the if you have any issue at all, with bankruptcy, you probably should not trust everybody to figure out when the stay applies and when it doesn’t, and just go get an order lifting stay from the bankruptcy court. That’s the easiest thing to do, because then the judge will feel more comfortable as well. The family court judge proceeding.

Holly: In your experience, do the bankruptcy courts give out the order lifting stay pretty freely?

Lauren: Yes. Yeah. Especially because they know it’s pretty common that in a family law case, you’re going to come to the court and ask for relief from stay. There are certain bankruptcy courts that will require you to put language in that order that says you will come back to them. If you have a divorce to for the court to approve the property division, and that the court the bankruptcy court will retain jurisdiction for purposes of, you know, approving the property division.

Because when someone files a bankruptcy, most of their property comes under the jurisdiction of the court because it’s considered property in the bankruptcy estate. So before you can dispose of or transfer ownership in any of that person’s property, the bankruptcy court has to approve it. But there are other bankruptcy courts that if you’re having if you’re going through a divorce, they don’t require you to come back to them to approve the property division. So that’s court dependent. It’s kind of like our practice and family law. Know your judge, know your court to an extent.

Holly: So how can one spouse file for bankruptcy without the other when we’re a community property state.

Lauren: So the federal bankruptcy law does not take into account community versus separate property per se, when it comes to filing for the bankruptcy initially. Okay. The state’s property laws will come into play if there are property issues in the bankruptcy after it’s filed. But the bankruptcy code does not require spouses to file jointly. And so one spouse can file without the other spouse filing. And again, there are strategic reasons for doing that. There might be, it might be that one spouse has most of the debt in that spouse’s name. And so regardless of community property issues or community debt issues, and I know that there’s a question as to whether there is such a thing, in the non family law, world Visa is only going to sue the person whose name is on the credit card, okay.

And they’re gonna look at the contract, and they’re gonna sue based on that. So even if you’re in a community property state, but wife’s name is nowhere on the credit card, and she didn’t take out the credit card, and she didn’t sign for the credit card, sign the contract for it, they’re only going to sue the husband. So a lot of times, you have couples who will for whatever reason, put all the debt in one spouse’s name. And so there’s no reason for the spouse without the debt to file bankruptcy. And they’re hoping that one spouse can keep their credit score high while the other spouse files the bankruptcy and gets rid of everything. So spouses are not required to file jointly. It is not a mandatory requirement.

Holly: So we have a family law case and we’re, you know, we see an inventory of the parties and there is a lot of debt. When should we be thinking of referring our client to a bankruptcy attorney? It’s kind of a two part question, and is that something that should be considered before a divorce or after?

Lauren: So I think it should be considered before you go to mediation. And I will get a lot of colleagues to reach that reach out to me and say, hey, look at my client’s, I and A, look at the other party’s I and A there’s all this debt. What do you think? Basically, I will look at the circumstances, I’ll look at the income. And I’ll say, well, if the clients are willing to do it, they should just file a joint chapter seven, get rid of all their debt. And then y’all aren’t spending time talking about debt at mediation, right. Or during final trial or whatever is going on, because it knocks the debt out of the case. And we’re not worrying about equalizing maybe a property division to account for the debt, right?

There are other times where they’re better off filing bankruptcy separately after they’re divorced. Because when you’re married, legally married, you are required to list your spouse’s income on your bankruptcy paperwork that you file with the bankruptcy court, whether your spouse is filing the case or not. Because you’re married, you have to list household income. Obviously, when you’re divorced, you don’t have a spouse anymore. So it’s just your income. So if it’s more beneficial to wait to file bankruptcy until after the divorce, then I encourage people to do that.

So there are just a lot of things that go into it. The other thing you want to look for are do they owe income taxes? Do they have significant income tax obligations? Is somebody behind on child support from a previous relationship? You know, are they behind on their mortgage? Are they behind on their property taxes? All of those things can be cured in a chapter 13, depending on the circumstances. So I would say look at once you get the I and As, really look at them and try to get a bankruptcy attorney to take a look at it before mediation so that you can have a good strategy going forward.

Holly: With the chapter 13 and the payment plan. At what point does the stay get lifted? Because that payment plan may take years to be fully paid out.

Lauren: Mm hmm. So the stay is always in effect, unless you go to court and ask for it to be lifted. There are certain circumstances where and that they don’t really intersect with family law much. But if somebody has either a house or a car, and they’re giving it back to the lender through the chapter 13. And sometimes the stay will lift as to the only that lender, so that that lender can then foreclose or do whatever they need to do, to carry out that debtor’s wishes of getting the property back to the lender. But the stay is always in effect in a Chapter 13. So you have to go to, and take affirmative action to go to the bankruptcy court and get that lifted.

Holly: So it’s in effect until that very last payment is made?

Lauren: Yes, correct. And if the case fails at any point and is dismissed, then the stay is not in effect any longer if it’s dismissed, and it’s also not in effect, once the case is discharged. But then you have a post discharge stay, which you know, is in place even once the case is discharged or completed successfully. And that just prevents any of the creditors that were listed in the bankruptcy from doing post discharge collection efforts. So sometimes you may have issues that come up, even post discharge in a bankruptcy where you want to make sure you’re not violating that stay.

Holly: Okay. So if we’re, you know, we’re sitting at mediation in a family law case, and there’s a lot of debt in one side’s name, will say it’s the other side’s name. Other side’s got all this debt in their name. They’re trying to get all of the property to account for that debt. We’re worried there’s going to go get it all discharged in bankruptcy.

Lauren: Yep.

Holly: Is there a way to kind of protect our client from having that happen? Can we put this guy has to file bankruptcy into the petition and then we deal with the property, assuming he’s going to do file bankruptcy?

Lauren: Yeah, so that’s a good question. This is the other area where we see a lot of intersection of family law and bankruptcy are dealing with debts, right. Dealing with domestic support obligations, dealing with you know, property division payments, okay. Domestic support obligations. Payment of those, so either child support, spousal maintenance or alimony are not dischargeable in any form or fashion, okay, in either seven or 13, not dischargeable. Property division payments are dischargeable and in a chapter 13, especially, somebody can file a chapter 13 pay a couple of bucks on their property division obligation, and then finish the chapter 13 and discharge the rest of it. Because property division payments are considered to be unsecured payments, and get lumped in with credit cards and all the rest of them and they get pennies on the dollar.

So that’s a pretty common occurrence. So when you can, and you can do this more often than not, but when you can list any property division payments, as a domestic support obligation for purposes of bankruptcy so that they cannot be discharged. And make sure that language is in the decree, because that’s what the court is going to look at. There are cases where bankruptcy courts have analyzed, you know, property division payment obligations, and looked at the decree to determine whether those were really agreed to or issued by the trial court in place of alimony payments or spousal support payments.

So, you know, in divorces, sometimes we say, oh, instead of, you know $1000 a month for spousal maintenance for three years, just, you know, pay a $36,000 lump sum, and we’ll call it done. Well, in the bankruptcy world, unless you label it in the decree as a domestic support obligation, it can potentially be discharged. So that’s the best way to protect your family law client from the other side just turning around and filing bankruptcy and getting rid of it.

Holly: Well and I was also thinking about it from the standpoint of, you know, they’re claiming all this debt to Visa and to all, you know other outside creditors, so that they can accumulate more, or getting more the property shifted their way, right, and they can go file bankruptcy and discharge it. But maybe having that property shifted their way would prevent them from being able to file.

Lauren: Yeah, I mean, that too, right. Because when you file bankruptcy, you have to list all the assets that you either have in your possession, have an equitable right to or a legal right to, even if those are not in your possession yet. So anything you know, you have a right to at the time you file bankruptcy, you have to list. And in certain circumstances, large cash payments or settlements are not exempt. So yeah, it probably would prevent someone from filing bankruptcy. But the way I handle those is I either say, let’s deal with the debt separately. In other words, I’m not going to agree to offset property with debt.

And we get creative and figure out how to do that. Or if we are offsetting property with debt, then I just asked for that domestic support obligation language to be in the MSA and make sure it’s in the decree. So they can, you know, discharge it later. If they really push back on that, that indicates to me that they’re planning to do something fishy. And then I probably will halt the, or stop the mediation, serve them with discovery or whatever else I need to do to figure out what they’re trying to accomplish.

Holly: Are there any concerns about putting into an MSA or a final decree that one of the parties must file bankruptcy post divorce?

Lauren: I don’t necessarily see any concerns other than I don’t see how that’s enforceable. You know, I’ve seen provisions like that, and you can’t force someone to file bankruptcy. If they’re really insolvent, you could file, you know, an involuntary bankruptcy against somebody and put them in a bankruptcy without their consent. But that requires technical know how from the bankruptcy standpoint, and that’s not common. It’s actually very rare. So I don’t see an issue with it other than I don’t think it’s enforceable.

Holly: Are there any recent developments in bankruptcy law that might interest family lawyers?

Lauren: As far as family law itself, not necessarily. But the big thing that people are talking about now, which comes up in our family law cases is student loan dischargeability. You know, there have been some recent court rulings, specifically by a federal appeals court in New York that recently ruled last year that, you know, private student loans are dischargeable in bankruptcy. So, you know, people who have student loans will oftentimes have, you know, federally backed or government backed student loans, and then some people have private student loans through private companies or private lenders. So, the court has ruled that private student loans are dischargeable. And some of them have been dischargeable for many years, but that was a big ruling. And now there’s a bipartisan bill that’s gotten support from both parties. That was introduced last.

Holly: Right now? There’s a bipartisan bill right now?!

Lauren: Yeah, can you believe it? I know. The bill that gets bipartisan support is, you know, discharging actually government backed or family, or sorry, government backed or federally backed student loans. And so, you know, it’s still kind of pending in the house, we’re not really sure what’s going to happen with it, or it’s pending out there. But it does have bipartisan support. It is called the Fresh Start Through Bankruptcy Act 2021. And basically, what it says or what it proposes, is that student loans, even if government backed or federally backed should be discharged in bankruptcy as easily as other debts. If it has been at least 10 years since you made your first payment on the loan, and you can show the court that you just don’t have the income to continue making the payments.

Right now, everyone says student loans are not dischargeable. That is not true. You have to file a separate lawsuit in bankruptcy court to discharge government back student loans. It is doable in certain circumstances. I have had success in those cases, and have gotten federally backed student loans discharged for my clients. But it is a very high burden to meet. It’s a very high test to me. And it’s not common. So you know, people say, oh, student loans are not dischargeable. That’s not technically true. It’s just super difficult to do. This bill changes that. This bill would not make us jump through those hoops, file a separate lawsuit in bankruptcy court anymore to discharge federally backed student loans, and would make them dischargeable like a Visa or MasterCard.

As long as you’ve been making payments for 10 years, and you show the court, you can’t afford it anymore. So you know, we’re interested to see where this goes. There are bankruptcy judges and retired bankruptcy judges that have really been lobbying for this. Student loans used to be dischargeable. And then they changed that law years ago. And now they’re revisiting that. So we’re kind of keeping our eye on that to see what happens. But you know, with student loans in our divorce cases being considered that spouse’s debt, right, whoever incurred the student loans, that can be a game changer if that bill gets passed.

Holly: So one of the things, we’re just about out of time, but one of the things I like to ask all of my guests on the podcast is, if you could give one piece of advice to young family lawyers, what would it be?

Lauren: Get a mentor, don’t be afraid to ask questions. I’ve been doing this for almost 20 years now. And I still reach out to my colleagues and ask questions. Holly, you and I have exchanged messages, just kind of brainstorming about issues that come up in cases. And I’ll say, hey, have you dealt with this before? I have other colleagues who I consistently go to ask questions. Don’t be afraid to ask questions, because I feel like in family law, something new potentially comes up every day, which makes it a really interesting area of law to practice, but also raises lots of questions, right?

So don’t be afraid to ask questions, get a mentor, take people out to lunch. Don’t be afraid to reach out. Like I said, I’m always happy to be a resource for my colleagues if I can ever help answer questions, bankruptcy questions, family law questions, probate questions, whatever. But young attorneys especially, ask questions, because I still ask questions every day. And it’s a good way to learn, but especially young or new attorneys, ask questions, get a mentor.

Holly: Excellent advice. So where can our listeners go to learn more about you?

Lauren: My website. It is www.powelllawoffices.com. And you’ll see more of my bio there. I’m also on LinkedIn. And again, I like to be accessible. I’m pretty laid back. So if you want to send me an email or give me a shout and say, hey, I’ve got some questions, or hey, I have a case I got a bankruptcy issue on. Just call me, email me. Happy to help.

Holly: Great. Well, thank you so much for joining us today. For our listeners, if you enjoyed this podcast, take a minute to leave us review and subscribe so you can enjoy future episodes.

Suzanne: Thank you.

Voiceover: The Texas Family Law Insiders podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at www.draperfirm.com.