[CLBS] Non DSO debt to a former spouse

[Tyler McGee]

I know there has been some good discussion on non-DSO [523(a)(15)] debts on the listserve in the past, but I cannot find any guidance on my issue. Here is the scenario: 

H and W are divorced, in connection with the divorce and property settlement, W is granted a money judgment against H. H files chapter 7 bankruptcy. The only debt that H lists in his bankruptcy is the debt owed to W. W comes in to my office thinking she is out of luck and I show her that non-DSO debts incurred in a divorce are non-dischargeable under 523(a)(15). Based upon the fact that the only debt listed is the debt from H to W, I assume that H and his attorney do not consider the debt to be non-dischargeable (or a mistake was made.) 

So here are my questions, keep in mind that I am usually not batting for the creditors' team, so I feel a little out of place. 

1 - A creditor must file an adversary proceeding to determine the dischargeability of any debt under section 523(a)(2), (4) or (6), it would seem that 523 (a)(15) debts survive discharge without a determination in an adversary proceeding. Is there any restriction on filing a complaint to determine non-dischargability on a 523(a)(15) complaint? 

2 - Would it be a good idea to file such a complaint while the bankruptcy is open? The reason to do this would be to have the fight now, rather than have the fight later, and risk sanctions for violating the discharge injunction.

3 - Would it be better to just file a motion for relief from the automatic stay claiming that this debt is non-dischargeable?

4 - Does anybody have a form for a Complaint Determining Nondischargeability that they would be willing to share?

Thanks.


Tyler J. McGee

ROY, NIELSON, BARINI-GARCIA & PLATTS
P.O. Box 487
Twin Falls, Idaho 83303-0487
Phone: (208) 734-4450
Fax:  (208) 734-4452