After nearly 35 years of marriage, Thomas Leviner and Kathy Leviner divorced and negotiated a Settlement where the parties prior marital residence was retained jointly for their children to inherit, but with Mr. Leviner to make the mortgage payments and Ms. Leviner to retain the property during her lifetime (unless she remarried.) Mr. Leviner was also pay alimony of $300 a week until Ms. Leviner turned 67 years old. In 2015, after refinancing the house, Mr. Leviner sought to offset the mortgage payments from the alimony being paid. This was rejected by Ms. Leviner, through her domestic attorney, and Mr. Leviner filed Chapter 13, seeking to sell the house. Ms. Leviner objected arguing that the obligation to pay for the mortgage was a non-dischargeable domestic support obligation.
The bankruptcy court held that Ms. Leviner had the burden of showing that the obligation is in the nature of support based on the following a non-exhaustive factors: (1) The actual substance and language of the agreement, not merely the labels attached, with indicia of support including: (a) Long-term obligation to make regular monthly payments; or (b) Termination on the death or remarriage of the obligee.
(2) The financial situation of the parties at the time of the agreement, including:
(a) The inability of the obligee to provide for basic needs, such as food, housing, or medical care; or (b) Explicit requirement of support amounts and additional the payment of a necessary vehicle or mortgage loan.
(3) The function served by the obligation at the time of the agreement, i.e. daily necessities; and
(4) Whether there is any evidence of overbearing at the time of the agreement, including whether: (a) The parties were represented by attorneys; (b) The terms grossly favor one spouse over the other; (c) The terms leave one spouse with no or minimal income; or (d) There were misrepresentations.
Applying these factors and reviewing similar cases, the bankruptcy court found that Ms. Leviner was the financially dependent spouse who would be unable to pay for necessities, specifically the house, without the support of Mr. Leviner. Nor were the Leviners simply splitting up the equity and debt related to their marital residence, but Ms. Leviner was meant to supported in the retention of her residence until her death or remarriage.
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