Volume 41, No. 2 (Summer 2007) — Table of Contents
"Winners and Losers in Bankruptcy Reform:
Do Women and Children Really Come Out on Top?
Nathalie Martin
This article introduces the articles in this Symposium on Bankruptcy issue and asks the question: Two years after enactment, how has the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) affected domestic relations attorneys and their clients? The author acknowledges that while most bankruptcy professionals have found BAPCPA disastrous, it is still unclear whether provisions relating to domestic support obligations are a silver lining in a very dark cloud or they do more harm that good, even to women and children.
A Guide to Spousal Support and Property Division Claims Under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005
Janet Leach Richards
This article provides an overview of the provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) and highlights the differences between the new and the old act, the Bankruptcy Reform Act of 1994 (BRA 1994), as they pertain to spousal support and property division debts.
Once Upon a Time in Bankruptcy Court: Sorting Out Liability of Marital Property for Marital Debt Is No Fairy Tale
James L. Musselman
This article focuses on the state law rules for determining generally how one becomes personally liable for a debt or obligation; for determining which marital property is liable for which debts incurred by the spouses; and for allocating debts and obligations between spouses in a divorce. It also addresses the intersection of bankruptcy law and state marital property law; specifically, the effect of bankruptcy with regard to marital debt that one spouse is responsible for paying postdivorce, and with respect to which the other spouse is either solely personally liable or jointly personally liable with the responsible spouse.
Representing Victims of Domestic Violence in Property Distribution Proceedings After the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005
Michael Satz & Elizabeth Barker Brandt
These authors discuss the provisions of BAPCPA most relevant to family law practitioners, especially in divorce cases involving victims of domestic violence. The first part of the article focuses on situations in which the abuse victim files bankruptcy. The second part is on situations involving affluent marriages in which the abuse victim is a creditor in the bankruptcy of her former husband. The authors make best practice recommendations for family law attorneys advising victims of domestic violence in divorce cases to best position them in case of either their own bankruptcy or that of their former spouse.
The Dog That Didn't Bark: Domestic Support Obligations and Exempt Property After BAPCPA
Michaela M. White and James P. Caher
This article attempts to show that BAPCPA did not authorize such a revolutionary undertaking by trustees. A number of factors militate against such a reading of the 2005 BAPCPA amendments, including statutory language itself, Congress's apparent intent in passing BAPCPA, and the policies that underlie the trustee's role in the bankruptcy process. Moreover, the few courts that have weighed in on this curious development have agreed that BAPCPA did not authorize trustees to pursue such liquidations.
Domestic Support Issues from a Governmental Perspective
Philip L. Strauss & Karen Cordry
This article is derived in large part from a "legislative history" that Phil Strauss originally drafted to be included in the Legislative History in the event the bankruptcy reform bill he introduced in 1997 passed and to assist child support officials in the interpretation of the language should it be challenged. It has been updated over time and expanded to comment on a number of emerging issues that have developed since passage of BAPCPA in April 2005.
Expecting the Unexpected: Unusual Domestic Relations Law Issues That May Arise Under the BAPCPA
Claude R. Bowles
This article reviews and considers some unexpected issues that may confront family law attorneys from the enactment of the BAPCPA. While the issue of dischargeability of obligations has largely been settled, numerous jurisdictional, technical, and substantive questions concerning the interaction of the Bankruptcy Code and family law still remain unanswered. Among the issues that are addressed are: (1) jurisdiction over the determination of whether an obligation is a Domestic Support Obligation (DSO); (2) the treatment of DSOs under a Chapter 13 plan; (3) changes in individual Chapter 11 cases in light of the BAPCPA amendments; and (4) whether family law attorneys could be considered Debt Relief Agencies under the Bankruptcy Code.
BONUS ARTICLES
Hearing Children's Voices and Interests in
Adoption and Guardianship Proceedings
American Bar Association Child Custody and Adoption Pro Bono Project
This article looks at how children's voices currently are heard by presenting the results of a fifty-one jurisdiction analysis of the laws on (1) appointing advocates for children and (2) hearing and considering children's preferences in adoption and guardianship cases. The authors look at whether these laws result in the child's voice being heard and discuss the different ways that children's voices can be considered in the adoption or guardianship process. They then discuss why and how to enhance the current system for hearing children's voices and interests.
- Appendix A— Appointment Provisions in Adoption Cases
- Appendix B— Appointment Provisions for Guardianship Cases
Between 1973 and 1986, Joseph Goldstein, Anna Freud, and Albert Solnit published three influential but controversial books on the best interests of the child that had an enormous impact on state decisions to intervene in family life and direct the placement of children. During the same period, children in child welfare proceedings were increasingly represented by lawyers or guardians ad litem whose advocacy included understanding and interpreting the meaning of best interests. This article begins by tracing a conversation of sorts that occurs between the authors and other scholars and practitioners as their ideas begin to influence decision-making in child protective and custody proceedings. It then turns to the central issue of how the books provide important lessons to child advocates about the indeterminacy of a best interest standard, the centrality of family integrity, and the need for all professionals working with children to define their decision-making roles clearly but narrowly. The article concludes that if these books had been written today, Goldstein, Freud and Solnit would embrace a child-directed role for lawyers as the sole practice paradigm which fully engages the child advocate in the "right" practices they proscribe: distinguishing between personal values and professional knowledge; remaining true to their assigned role as counsel within strict legal boundaries; and resisting taking on the roles of other professionals in the case. These "right" practices, in turn, limit the indeterminacy of the best interest standard by limiting the freedom of the lawyer to decide what is best.
