Opinion
Bankr. No. 01-50124, Chapter 7
May 18, 2001.
Before the Court are Dan Schlup's Motion to Extend Time to File Complaint to Discharge Certain Debts and his Motion for Relief From Stay, both filed May 2, 2001, and Debtor's objection to each. These are core proceedings under 28 U.S.C. § 157(b)(2). As discussed below, the extension motion will be denied. Additional information is needed before a disposition is made regarding the relief motion.
Summary.
Based on the present record, Debtor and Dan Schlup have a divorce pending in state court that was commenced pre-petition. Dan Schlup has sought relief from the stay so that he can "pursue any and all claims against [Debtor]" in the divorce action. Debtor has objected on the grounds that the state court does not have jurisdiction to deal with Debtor's assets or liabilities or the dischargeability of particular debts.
Dan Schlup also wants an extension of time in which he may file a non dischargeability complaint. Debtor has objected to that motion on the grounds that Dan Schlup does not presently hold a claim that would give rise to a non dischargeability claim.
Discussion.
Needless to say, a bankruptcy commenced in the middle of a divorce is not the ideal. While the automatic stay does not stop the divorce court from resolving matters of support or alimony, 11 U.S.C. § 362(b)(2), it does deprive the divorce court of jurisdiction over the debtor's assets and liabilities. In some cases, especially "no asset" Chapter 7 cases, I have granted relief so that the parties may complete the divorce while the bankruptcy case is being administered. That may be an option here. If Trustee Whetzal and counsel agree that there are no assets for him to administer, there is no reason for the divorce to be delayed. Therefore, please confer and advise me by May 25, 2001 whether there are assets for the Trustee to administer. If not, relief from the automatic stay will be entered.
Finally, in this Circuit, a divorce-related claim does not come into existence until the divorce court enters a dispositive order. Bush v. Taylor, 893 F.2d 962, 965 (B.A.P. 8th Cir. 1990); Arleaux v. Arleaux, 210 B.R. 148, 149-50 (B.A.P. 8th Cir. 1997), aff'd, 149 F.3d 1186 (8th Cir. 1998); Arleaux v. Arleaux (In re Arleaux), 229 B.R. 182, 184-86 (8th Cir. 1999); see also Compagnone v. Compagnone (In re Compagnone), 239 B.R. 841, 843 (Bankr.D.Mass. 1999) (setting forth line of cases in accord with Arleaux). Accordingly, in this case, though the divorce was commenced pre-petition, Dan Schlup does not hold a pre-petition, divorce-related claim that can be discharged through this bankruptcy proceeding. That renders moot any non dischargeability issues he may have. An order denying his extension motion will be entered.