All Attorneys Know the Law, Right?

I love the show Chopped. 

It is a cooking show where the chefs must prepare an appetizer, main course, and desert in a small amount of time.  What I enjoy most is that pastry chefs always complain how difficult it is to beat the other chefs in the appetizer and main course meals. Likewise, the non-pastry chefs always say during the dessert portion something like, “I am worried about this course, I am not a pastry chef.”

Attorneys are very similar to the contestants on Chopped. We know how to practice law, but some of us specialize in some areas and know only enough to be dangerous in others. In the areas of family law and bankruptcy, it can be like pastry chefs and non-pastry chefs. You need them both to complete the meal, but the skills involved are very different.

Before the local chefs and attorneys get upset, I am not saying that the product of a pastry chef is more or less important than that of a non-pastry chef; they’re just different kinds of chefs.  I am also not saying that some attorneys are cream puffs.

In my family law practice, I am often presented with questions related to bankruptcy. Too often a divorce crushes both parties’ financially, and bankruptcy becomes a viable option for one or both of them. The most common questions I receive are:

• If my spouse or I file for bankruptcy in federal court while my divorce is pending, can the state court continue with the divorce?  

• The court has ordered my spouse to distribute property to me.  Will I still get the property if my spouse files for bankruptcy?

I am not going to attempt to answer these questions in substantial detail.  My goal is to introduce some concepts that can serve as starting points for discussions with family law and bankruptcy attorneys.

Most importantly, I want to stress that there is absolutely no shame in speaking with two or more attorneys in each practice area.  

The first term in bankruptcy that terrifies non-bankruptcy attorneys and family law clients is “automatic stay.”  The definition of automatic stay is relatively easy to grasp:  any litigation that is pending or could potentially be brought automatically stops. The emergency brakes are applied.

There is good news, however. Not all family law matters stop in their tracks. You can still seek state court assistance to establish paternity, to establish your right (or modify your right)  to child support or alimony, to establish “time-sharing” (formerly called custody and visitation), and to protect yourself from domestic violence - to name a few.  

Property distribution issues are slightly more complex. There is a difference in how property is treated depending on whether the divorce is pending or final. When a divorce is final and property is unequivocally distributed pursuant to a court order, then the bankruptcy cannot usually change the distribution.

The bankruptcy court’s treatment of property during a divorce is much more difficult.  If a divorce is pending when a bankruptcy petition is filed by one spouse, state law must be consulted to determine if each spouse has an equitable but contingent interest in property owned by the other (marital asset or non-marital asset) or if the non-owner spouse has no interest in the other’s property until final judgment of dissolution is entered.

Divorces, child support, alimony, and domestic violence are unfortunately a large part of a family law practitioner’s daily workload. And bankruptcy is increasingly becoming a way for people to restart their financial future. When you are dealing with both, make sure to seek legal counsel from practitioners in both fields.