Special Issue on Family Law and Bankruptcy

Sheryl Scheible Wolf, Introduction to the Special Issue on Family Law and Bankruptcy, 31 Fam. L.Q. 369 (1997).
This issue of the Family Law Quarterly focuses on the most commonly encountered, and most controversial, bankruptcy issues involving family law. It contains articles by some of the preeminent scholars and jurists in the field, who offer both theoretical background and practical advice. The calls for reform contained in these articles are particularly timely in light of the report of the Bankruptcy Commission which is expected to be delivered to Congress during the fall of 1997. Congress will be reevaluating many of the issues discussed herein over the next several years, and it is to be hoped that many of the currently perceived inequities soon will be eradicated from the Bankruptcy Code.

Margaret Howard, A Bankruptcy Primer for the Family Lawyer, 31 Fam. L.Q. 377 (1997).
This article provides an explanation and overview of the bankruptcy system, or at least that part which family lawyers are most likely to encounter. It highlights those aspects of the system in which family claimants enjoy "most favored creditor" status in bankruptcy. To accomplish this task, the article is, of necessity, general. Bankruptcy's devilish details will be more fully developed by the other articles in this symposium.

Margaret Dee McGarity, Avoidable Transfers Between Spouses and Former Spouses, 31 Fam. L.Q. 393 (1997).
This article addresses some of the opportunities and pitfalls of prebankruptcy transfers between spouses, former spouses, and soon-to-be former spouses, which may have an impact on both the transferor and the nonfiling recipient if the transferor becomes a "debtor," after the transfer. It does not focus on interspousal conflict but on transfers between spouses and former spouses that might be recoverable by a trustee for the estate. The emphasis is on the bankruptcy trustee obtaining assets, not on objecting to the discharge on account of these transfers.

Bernice B. Donald & Jennie D. Latta, The Dischargeability of Property Settlement and Hold Harmless Agreements in Bankruptcy: An Overview of 523(a)(15), 31 Fam. L.Q. 409 (1997). This article reviews the history of bankruptcy law treatment of marital debts. Specifically, Part II reviews the history of the courts' treatment of support obligations and the enactment of 523(a)(15), which extends nondischargeability to marital debts not in the nature of support. Part III of the article compares the components and applications of 523(a)(5) to 523(a)(15). Part IV discusses various issues regarding practice and procedures, including standing, time limitations for filing a complaint, rules of pleading, and burden of proof issues. Part V analyzes the affirmative defenses available to the debtor-defendant under 523(a)(15)(A) and (B).

Richard H.W. Maloy, Using Bankruptcy Courts to Modify Domestic Relations Court Decrees: Problems Created by 523(a)(15), 31 Fam. L.Q. 433 (1997).
This article addresses some of the serious problems created by 523(a)(15). Section I provides a typical case scenario to illustrate the issues likely to arise when a debtor seeks discharge of marital debts. Section II extends the analysis by detailing eighteen matters which arise when a marital creditor attempts to have a property obligation excepted from discharge. The article concludes by offering a suggestion for reform.

Michaela M. White, The Procedural Plight of the Property Settlement Creditor, 31 Fam. L.Q. 463 (1997).
This article focuses on several procedural aspects of the property settlement exception to discharge. It describes in depth several particularly burdensome procedural aspects of the property settlement exception and makes specific suggestions for legislative cures. Although the language of 523(a)(15) is sufficiently troublesome to make it a logical candidate for substantive amendments, the purpose of this article is neither to exhaustively describe these substantive problems nor to detail the numerous splits in judicial interpretation the language of the section has engendered. Rather, the article describes some of the economic and psychological effects of divorce in order to contextualize the procedural challenges facing the property settlement creditor whose ex-spouse has filed a Chapter 7 bankruptcy. The procedures are abstract and even more arcane than is usual for bankruptcy. To illustrate the impact of these procedures, the article introduces a hypothetical Chapter 7 debtor, Arlo Smith, and an ex-spouse creditor, Gemma Smith.

Allen M. Parkman, The Dischargeability of Post-Divorce Financial Obligations Between Spouses: Insights from Bankruptcy in Business Situations, 31 Fam. L.Q. 493 (1997)
. This article takes the position that none of the financial obligations of ex-spouses should be dischargeable in bankruptcy. This would increase efficiency and is generally fairer. This is illustrated using arms-length business arrangements to show that society is usually better off by limiting people's incentives to file for bankruptcy. Then, it is argued that both support payments and property divisions at divorce are based on compensating a creditor ex-spouse for obligations incurred during a marriage that in a business setting would be debts that would be difficult to avoid through bankruptcy.

Sheryl Scheible Wolf, Divorce, Bankruptcy, and Metaphysics: Avoidance of Marital Liens Under 522(f) of the Bankruptcy Code, 31 Fam. L.Q. 513 (1997).
This article focuses on the mechanics and theories of marital lien avoidance. Section I sketches the framework of the exempt property and lien avoidance provisions of the Bankruptcy Code. Section II analyzes the direct application of those provisions to marital liens, with particular attention directed to the 1991 Supreme Court decision of Farrey v. Sanderfoot and the 1994 amendments to 522(f). Section III evaluates the implications of the Sanderfoot decision and the amendment on subsequent cases, detailing the current state of the law. The article concludes by suggesting methods for assuring that marital liens survive a former spouse's bankruptcy action, including legislative reform, judicial interpretation, and planning techniques.

Essay

Daniel W. Shuman, What Should We Permit Mental Health Professionals to Say About "The Best Interests of the Child"?: An Essay on Common Sense, Daubert, and the Rules of Evidence, 31 Fam. L.Q. 551 (1997).
Throughout the judicial system, courts demand increasingly greater control and accountability of expert testimony. Curiously, that is not the case in child custody and visitation determinations utilizing the use of the best interests of the child standard. Why? Are decisions involving application of the best interests of the child standard less important than those made elsewhere in the judicial system? Are there better reasons to accept the opinions of experts who offer opinions about the best interests of a child than the opinions of other experts on other issues? Or, is the judicial system more dependant on expert assistance in deciding the best interests of the child than on other issues on which expert testimony is offered? How did we come to this disparate treatment of expert testimony and should it continue? This article offers insight into all of these issues.

1997 Schwab Essay Winners

Melissa Rothstein, The Defense of Marriage Act and Federalism: A States' Rights Argument in Defense of Same-Sex Marriages, 31 Fam. L.Q. 571 (1997).
This paper, the first place winner in the Family Law Section's 1997 Schwab Essay contest, suggests that both clauses of the Defense of Marriage Act are unconstitutional because they infringe on federalism. The first section discusses the general right to marry and the denial of rights based on sexuality, with particular attention to the recent Supreme Court case of Romer v. Evans. The second section provides an overview of federalism, which discourages federal intervention in private matters, especially as it relates to family law and marriage. The last section discusses the Full Faith and Credit Clause and the limited federal power in settling conflict of law disputes in marriage recognition. The paper concludes by establishing that Congress overextended its constitutional authority when it passed DOMA.

Susan Higginbotham, "Mom, Do I Have to Go to Church?": The Noncustodial Parent's Obligation to Carry Out the Custodial Parent's Religious Plans, 31 Fam. L.Q. 585 (1997).
When parents separate or divorce, one of the myriad issues to be worked out is the religious upbringing of the child. Generally, courts have left this matter to the custodial parent. But how far may courts go in carrying out the custodial parent's wishes? May a court order that the noncustodial parent give up his own time with the child in order to further the custodial parent's program of religious instruction? More importantly, by considering the constitutional rights involved, may the court require that the noncustodial parent go beyond mere acquiescence in the custodial parent's plans to active participation in them, including taking the child to church or observing the religious rituals followed by the custodial parent? Recently, several courts have grappled with these issues. This essay, the second place winner in the Schwab Essay contest, briefly examines some of these decisions and the visitation and constitutional rights they affect, concluding that orders which impose upon these rights should be issued only when required by the best interests of the child.

J. Allan Cobb, What Happens When Cyberspace Is Used to Lure Children into Sexual Relations A Look at Federal Venue Provisions, 31 Fam. L.Q. 597 (1997).
This article, the third place winner in the Schwab Essay contest, analyzes federal venue issues concerning child sexual abuse crimes which occur or are initiated in cyberspace. Specifically, it discusses the federal statutes that most commonly evoke venue issues when dealing with sexual abuse crimes committed across state lines: 18 U.S.C. 2421 2423, the White Slave Traffic Act, and 18 U.S.C. 1465, the Continuing Offense Statute. Although not created to address the issues of online sexual crimes, these statutes effectively address the unresolved venue issues that often arise when sexual abuse occurs in the "never-never land of cyberspace."

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