The Family Times
West Virginia Family Law Newsletter

                                                                                                                                               March 2011- Vol 1, Issue 2

In This Issue

Andrew S. Nason, Esq.

 

"Impact of Bankruptcy Laws on Family Law Practitioners"

 

--------------------------------------------

 
Access to a Child's Records
--------------------------------------------

TECH TIP:

Search Bank IDs and Routing Numbers on the Federal Reserve's online database.

--------------------------------------------

 

WV LEGISLATURE UPDATE

Sampling of Domestic Relations Bills Introduced this session

--------------------------------------------

 

CASE BRIEF:

Whittaker v. Whittaker (2011) 

- Family Courts may have subject matter jurisdiction to order the transfer of a Limited Liability Corporation's assets in certain situations.

 

------------------------------------------- 

 

NEWSLETTER ARCHIVE 

 

 

Upcoming Events

March 3 - CLE: WV Coalition Against Domestic Violence, "The Rural Realities of a Coordinated Community Response," Twin Falls State Park, 965-3552, 8.40 credits 
 
March 8 - Meeting - Kanawha County Family Law Bench Bar Committee - 5:30pm
 
March 23 - CLE: WV Coalition Against Domestic Violence, "The Rural Realities of a Coordinated Community Response," Bridgeport,
965-3552, 8.40 credits 

March 23 - CLE: WVPAI, "Crimes Against Children Task Force Seminar,"
Charleston, 304/558-3348, 7.20 credits 

March 25 - Meeting - WV State Bar Family Law Committee - 10:00 am
Brought to you by:

West Virginia State Bar

President, Letitia Chafin, Esq.

 

WV State Bar Family Law Committee

Chair, Lyne Ranson, Esq.

 

Kanawha County Family Law

Bench Bar Committee
Chair, Andrew S.  Nason, Esq.


Newsletter Editor

Brittany N. Ranson, Esq.

Greetings! Top

Welcome to "The Family Times" -- brought to you monthly by the West Virginia State Bar Family Law committee and members of the Kanawha County bench bar committee.  We hope this newsletter will serve to inform, entertain, and provide a forum for discussion for all West Virginia family law practitioners and judges.  

Click here to submit a relevant article, notice of event, CLE dates in your area, or any ideas or comments you have to improve this newsletter to the editor.

Please enjoy!
  
 

Tech Tip: Bank ID or Routing Number SearchTechTip

Have you ever seen a direct deposit on the other spouse's paystub with an account number you didn't know about? 

 

If you have a Bank ID or a routing number, then try the Federal Reserve's searchable database where you can enter the bank ID or routing number and it will tell you what bank the money is being deposited into. Click Here to access the database!

Little Known Code Section of the Month - 48-9-601

Did you know that both parents have full and equal access to their child's medical, juvenile and educational records absent a court order to the contrary and even without the other parent's permission? LittleKnownCodeSection

  

 WV Code  48-9-601. Access to a child's records.

 

 (a)(1) Each parent has full and equal access to a child's educational records absent a court order to the contrary. Neither parent may veto the access requested by the other parent.

  ...

 (2) In addition to the right to receive school records, the nonresidential parent has the right to participate as a member of a parent advisory committee or any other organization comprised of parents of children at the school that the child attends.

(3) The nonresidential parent or noncustodial parent has the right to question anything in the child's record that the parent feels is inaccurate or misleading or is an invasion of privacy & to receive a response from the school.

(4) Each parent has a right to arrange appointments for parent-teacher conferences absent a court order to the contrary. Neither parent can be compelled against their will to exercise this right by attending conferences jointly with the other parent.

 

 (b)(1) Each parent has full and equal access to a child's medical records absent a court order to the contrary. Neither parent may veto the access requested by the other parent. If necessary, either parent is required to authorize medical providers to release to the other parent copies of any and all information concerning medical care provided to the child, which would otherwise be properly released to the other parent.

...

 (c) Each parent has full and equal access to a child's juvenile court records, process and pleadings, absent a court order to the contrary. Neither parent may veto any access requested by the other parent. Juvenile court records are limited to those records which are normally available to a parent of a child who is a subject of the juvenile justice system.

 

 For the Full Text of the Statute: Click Here

GUEST AUTHOR: Andrew S. Nason, Esq, Kanawha Co. Family Law Bench Bar Chair GuestAuthor

THE IMPACT OF BANKRUPTCY LAWS ON FAMILY PRACTITIONERS

 

Bankruptcy is just not for bankruptcy lawyers anymore. The bankruptcy laws affect Family Law practitioners too.

 

1.  New Definition of "domestic support obligation" under 11 USC 101 (14A):

  

"(14A) 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 non-bankruptcy 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 that date of the order for relief in a  case under this title, by reason of application 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 non bankruptcy 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."

 

This includes both pre-petition and post-petition obligations and accruing interest.

  

2.  The filing of bankruptcy does not "stay" the following:

  •  11 USC 362(b)(2)(A) -- the commencement or continuation of a civil action to do the following:
    •  establish paternity
    •  create or modify a domestic support obligation
    • child custody or visitation (shared parenting orders?)
    • divorce actions but not division of assets
    • domestic violence proceedings
  • 11 USC 362(b)(2)(B) -- collection of a "domestic support obligation" from property that is not property of the estate;
  • 11 USC 362(b )(2)(C) --  income withholding - for domestic support obligation
  • 11 USC 362(b )(2)(D) -- suspension of a license, professional or occupational or recreational license under state law or as specified in 466 (a) (6) of the Social Security Act for obligations for a domestic support obligation

3.    11 USC 362(b)(2)(E) allows a parent to report arrearages on a domestic support obligation to a creditor/consumer reporting agency as specified in 466(a)(7) of the Social Security Act.

 

4  11 USC 362(b)(2)(F) allows interception of a tax refund for a domestic support obligation.

 

5.    11 USC 362(b)(2)(G) allows the enforcement of a medical support obligation.

 

6.  Support Obligation Priority:

 

All domestic support obligations are a first priority for payment under 11 USC 507(a)(1):

 

However obligations owed to a spouse, former spouse, child of the debtor or child's parent, legal guardian or responsible relative, or recoverable by the government unit on their behalf is first among priority debt.   Second are domestic support obligations assigned to a government unit or owed directly to a governmentunit.

 

7.  Chapter 13 - Unique Provisions

 

  • 11 USC 1307(c) was amended to make failure to pay post-petition domestic support obligation a grounds for dismissal of the bankruptcy petition.
  • 11 USC 1322(a)(4) provides that, although support owed to the government is now a priority debt, it need not be paid in full in a Chapter 13 Plan if debtor proposes a five (5) year plan committing all disposable income and cannot pay it in full. The obligation however is not discharged.
    • In a Chapter 13 plan this policy prevents large government support debts from making mortgage cure and other Chapter 13 remedies unavailable which may otherwise help families.
  • 11 USC 1325(a)(7) makes payment of post-petition support one of the standards for Chapter 13 plan confirmation.
  • 11 USC 1328(a) will require the debtor, in order to obtain the Chapter 13 discharge, to certify that all post-petition support and all support required to be paid by plan has been paid.
    • This certification is not required for a hardship discharge.
    • Debtor who cannot make certification or obtain hardship discharge may have to convert to Chapter
  • The net result gives domestic support creditors power in Chapter 13 cases; gives them the ability to scuttle the plan if they are not paid, and creates a hammer throughout the cases.
  • See In Re Vinnie, 345 B.R. 386 (Bkrtcy. M.D. Ala, 2006)(Divorce lawyer attorney fees and priorities in Chapter 13); In Re Sanders, 341 B.R. 47 (Bkrtcy, N.D. Ala, 2006)(priority position of domestic support obligations and plan treatment); In Re Reid, Slip copy 2006 WL2077572 (Bkrtcy. M.D. N.C. 2006)

8.   Dischargeability Issues

  •  Section 523(a)(5) now makes all domestic support obligations nondischargeable in all chapters (child support and alimony).
  •  All property settlement debts are made non-dischargeable in Chapter 7.
  • Section 523 (c) is amended to no longer require a proceeding to be brought in the bankruptcy court. See Wood v.Wood, 438 S.E.2d 788, 800 (W.Va. 1993), where the West Virginia Supreme Court recognized that questions of whether or not payments pursuant to a divorce decree in the nature of alimony or child support or maintenance and are, therefore, nondischargeable in bankruptcy or whether or not they are property settlement issues which may be dischargeable in bankruptcy is a federal question which should be determined by the Bankruptcy Court.

9.           What debts remain dischargeable in Chapter 13?

 

There is still 11 USC 523(a)(15), which reads as follows:

 

"(15) to a spouse, former spouse, or child of the debtor and not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a governmental unit."

 

It seems reasonable to conclude that any equitable distribution obligation which does not sound, act, feel, or look like "domestic support" would be dischargeable in a Chapter 13 with a percentage payout.

 

10.     11 USC 522(f) now prohibits the avoidance of a judicial lien created for a domestic support obligation.

 

11.       Trustee Duties

  •  Trustees in every chapter must give notice to holders of domestic support obligations of services provided by state child support enforcement agencies and rights to collect claim in bankruptcy,
  • Trustee must also send notice of the claim to state child support enforcement agencies, many of which will also receive the notice given to holders of claims, which presumably could be combined with this notice,
  • Another notice must be sent to the holder of the claim and state child support enforcement agency when a discharge is granted,
    • This notice must contain last known address of debtor and debtor's employer
    • It must also contain the name of each creditor holding a claim not discharged under �� 523(a)(2), (4), or(14A) or a claim that was reaffirmed

What happens if the trustee does not have this information at time of discharge?

  •  Support creditors may request debtor's address information from creditor
  • There is no requirement that creditor answer the request.

12.       Remember, it is easier to divide assets than divide net assets. Therefore, a bankruptcy filing prior to the entry of a divorce order may be worth pursuing.

 

- TOP OF NEWSLETTER -

80th Session of the West Virginia Legislature   ArticleBlock1                    Domestic Relations Bills

Want to stay up-to-date on the status of all domestic relations bills being considered by the West Virginia Legislature this session? Click here: WV Legislature Bill Status and scroll down to "Domestic Relations" to search by topic.

 

Below is a sampling of "Domestic Relations" bills from this session. Clink the title to read the full text of the bill. 

 

PENDING LEGISLATION

 

House Bill 2067: Providing that adultery shall be a bar to alimony in a divorce proceeding; (pending in House Judiciary Committee)(See also Senate Bill 503);

 

House Bill 2204: Relating to requirements for self-employed persons to participate in the Bureau of Child Support Enforcement's PayConnextion program (pending in House Judicary Committee);

 

House Bill 2234: Providing a procedure for disclosure of birth parents to an adoptee in certain circumstances; (pending in House Judiciary Committee);

 

House Bill 2290: Uniform Premarital Agreement Act; (pending in House Judiciary Committee);

 

House Bill 2411: Excluding disability income received from a veteran for service related to injuries from calculation used to determine spousal support (pending in House Veteran's Affairs and Homeland Security Commitee);

 

LEGISLATION PASSED IN THE HOUSE

 

House Bill 2347: Extending the maximum length of protective orders in domestic violence (Pending in Senate Judiciary);

 

House Bill 2742: Revoking certain death benefits automatically upon divorce (Pending in Senate Banking and Insurance);

 

House Bill 2521: Eliminating the requirement of serving domestic violence orders by certified mail (Pending in Senate Judiciary Committee);

 

House Bill 2750: Adding consideration of sexual assault in issuing an order to temporarily or permanently end a parent-child relationship (Pending in Senate Judiciary Committee);

 

House Bill 3134: Relating to child support (Pending in Senate Judiciary Committee).

 

COMPLETED LEGISLATION

 

House Bill 2613: Authorizing the Governor's Committee on Crime, Delinquency and Correction to promulgate legislative rules relating to Protocol for Law Enforcement Response to Domestic Violence.

Case Brief: Whittaker v. Whittaker (March 2011) ArticleBlock2                                        ^ Top

Issue: Does the Family Court have Subject Matter Jurisdiction  to Order a Limited Liability Corporation (LLC) to transfer its assets for equitable distribution purposes?

 

Generally, No.  Family Courts do not have subject matter jurisdiction to order a limited liability company to transfer its for purposes of equitable distribution.  See W.Va. Code 31B-2-201 (1996) which states that "a limited liability company is a legal entity distinct from its members." 

 

Exception: The Family Court may have subject matter jurisdiction to order a limited liability corporation to transfer its assets where, as in this case:

  • The spouse is the only member of the LLC;
  • The spouse has the authority to transfer assets and properties belonging to the LLC;
  • The spouse's authority does not require the consent of any other person, board of directors or other entity; and
  • Where that spouse voluntarily choses to make such a transfer as part of a property settlement agrement. 


Click here to view the Court's opinion in this case.


Please email guest articles, ideas, points of view, tech tips, etc. to Brittany Ranson at [email protected] or contact by phone at (304) 344-2121.

Thank you for your contribution!