Thursday, March 09, 2006

Debtor’s Prison is Alive and Well

"Undoubtedly it (the Fourteenth Amendment) forbids any arbitrary deprivation of life, liberty or property, and secures equal protection to all under like circumstances in the enjoyment of their rights... It is enough that there is no discrimination in favor of one as against another of the same class. ...And due process of law within the meaning of the [Fifth and Fourteenth] amendment is secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government."
Giozza v. Tiernan,

The entire arena of Family Law has become a domain of Constitutional violations and usurpation of civil rights. What a normal person would consider a Debtor's Prison has been instituted. To usurp the Constitution, the courts have "legislated" a perversion of the law declaring "contempt" as the new Debtor's Prison Mantra by stating it is not a debtor's prison because the jailing for contempt can be remedied upon clearing the contempt (i.e. paying the DEBT! Aka Debtor's Prison).

Family Courthouses in America, in practice, have become Family slaughterhouses. Families, children, and our futures are being plundered through the use of junk science represented as 'gold standards.” Destroying families and children in America has become BIG BUSINESS. A MULTI-BILLION DOLLAR INDUSTRY. The deadbeat dad myth, is just that, a myth. ---- Read More

In order to avoid putting you in a now outlawed debtor’s prison for failing to pay your debts, the courts are saying that alimony is not a debt but an obligation. A rose by any other name is still a rose. Therefore, putting you in jail for failing to pay an obligation is not the same as putting you in a debtor’s prison.

By playing with words and redefining them, they are able to incarcerate you without a definite time sentence as they say that you hold the keys to your cell and can get out whenever you want. All you have to do is pay the money. A criminal is given a better deal than you will get. Not only that, as a criminal the state will pay for a lawyer to defend you if you can’t afford one, you are presumed innocent until proven guilty, they get to have a trial by jury and if found guilty, they will be incarcerated for a specified period. None of which you can get if you are charged with contempt.

As you can see, the courts are holding all the cards and they are definitely stacked against you. You are considered guilty unless you can prove your innocence.

Read this article to see how the courts in Texas view a debt:
Debtor’s prison in Texas

Is Alimony Really a Debt?

Even though the court says that the alimony debt is an “obligation”, the following cases show how courts view alimony “debt” where alimony is definitely referred to as a “debt.” So which is it? By redefining it, they now have an opportunity to put you away in a socially accepted manner.

The debt of $800 represented arrears of alimony, granted to his former wife, Florence Audubon, on February 25, 1898, by a decree of the circuit court of Montgomery county, in the state of Maryland, in a cause of divorce, directing him to pay alimony to her at the rate of $50 a month, beginning April 1, 1898. No part of that alimony has been paid.

Alimony does not arise from any business transaction, but from the relation of marriage. It is not founded on contract, express or implied, but on the natural and legal duty of the husband to support the wife. The general obligation to support is made specific by the decree of the court of appropriate jurisdiction.

Generally speaking, alimony may be altered by that court at any time, as the circumstances of the parties may require. The decree of a court of one state, indeed, for the present payment of a definite sum of money as alimony, is a record which is entitled to full faith and credit in another state [181 U.S. 575, 578] and may therefore be there enforced by suit. Barber v. Barber (1858) 21 How. 582, 16 L. ed. 226; Lynde v. Lynde (1901) 181 U.S. 183 , ante, 555, 21 Sup. Ct. Rep. 555. But its obligation in that respect does not affect its nature.

In other respects, alimony cannot ordinarily be enforced by action at law, but only by application to the court which granted it, and subject to the discretion of that court. Permanent alimony is regarded rather as a portion of the husband's estate to which the wife is equitably entitled, than as strictly a debt; alimony from time to time may be regarded as a portion of his current income or earnings; and the considerations which affect either can be better weighed by the court having jurisdiction over the relation of husband and wife than by a court of a different jurisdiction.

Examples of legal uses of “debt” and “obligation” interchangeably in relation to alimony:

1. The Agreement Incident to Divorce, Section 7, is in the nature of "alimony" as that term is defined under § 523 of the Bankruptcy Code and is a non-dischargeable debt of Defendant in this bankruptcy

2. The Agreement Incident to Divorce, Section 7 ... and the Final Decree of Divorce ... create a non-dischargeable obligation on the part of Defendant pursuant to 11 U.S.C. § 523 as such creates an "alimony" obligation owing by Defendant to Plaintiff.

"One of the most venerable principles of American bankruptcy law is that a debtor's obligation to provide alimony or support to a spouse or former spouse will not be affected by the discharge order."

In re Tessler, 44 B.R. 786, 787 (Bankr.S.D.Cal.1984) (citing Audubon v. Shufeldt, 181 U.S. 575, 579, 21 S.Ct. 735, 736, 45 L.Ed. 1009 (1901)). This concept is found in the Bankruptcy Code as § 523(a)(5), which exempts from discharge any debt owed to a former spouse or child for alimony, maintenance, or support. Matter of Joseph, 16 F.3d 86, 87 (5th Cir.1994).

Property settlements, on the other hand, are dischargeable in bankruptcy. In re Brody, 3 F.3d 35, 38 (2d Cir.1993).(3) " "Whether a particular obligation constitutes alimony, maintenance, or support within the meaning of this section is a matter of federal bankruptcy law, not state law,' "(4) and is determined by examining the nature of the debt at the time it was created.

Matter of Davidson, 947 F.2d 1294, 1296-97 (5th Cir.1991); In re Wisniewski, 109 B.R. 926, 929 (Bankr.E.D.Wis.1990); In re Jenkins, 94 B.R. 355, 360 (Bankr.E.D.Pa.1988); In re Brown, 46 B.R. 612, 614 (Bankr.S.D.Ohio 1985). "The circumstances of the parties subsequent to the entry of the judgment for divorce is irrelevant to that inquiry." In re Larson, 169 B.R. 945, 952 (Bankr.D.N.D.1994).

3. Whether Maddigan's Debt” to Falk & Siemer is Nondischargeable in Bankruptcy
In order for the “debt” Maddigan owes Falk & Siemer to be nondischargeable under § 523(a)(5), three statutory requirements must be met. First, the “debt” must be "to a spouse, former spouse, or child of the debtor." 11 U.S.C. § 523(a)(5). Second, the debt must be "actually in the nature of" (as opposed to simply designated as) alimony, maintenance, or support. Id. § 523(a)(5)(B). Third, the “debt” must have been incurred "in connection with a separation agreement, divorce decree or other order of a court of record." Id. § 523(a)(5). We address each element in turn.

4. Morris v. Jones, 329 U.S. 545 (1947). Moreover, there is no apparent reason why Congress, acting on the implications of Marshall's words in Hampton v. McConnell, 16 U.S. (3 Wheat.) 234 (1818), should not clothe extrastate judgments of any particular type with the full status of domestic judgments of the same type in the several States. Thus, why should not a judgment for alimony be made directly enforceable in sister States instead of merely furnishing the basis of an action in “debt”?

5. Graves v. Myrvang
(a) A discharge under section 727, 1141, 1228(a), 1228(b) or 1328(b) of this title does not discharge an individual debtor from any debt -- . . . . (15) not of the kind described in paragraph (5) [for alimony, maintenance, or support] that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, a determination made in accordance with State or territorial law by a governmental unit unless –
3 The parties have not briefed, and we do not decide, whether the disposable income test of 11 U.S.C. S 1325(b)(2) is the exclusive method that a bankruptcy court must employ in determining ability to pay under S 523(a)(15)(A). We note, however, that courts have employed a variety of approaches in determining a debtor's ability to pay a divorce-related debt.

Related articles:
Blanton v. City of North Las Vegas – Incarceration for contempt of court

In Blanton v. City of North Las Vegas (US-1989) it was ruled: "offenses for which the maximum period of incarceration is six months, or less, are presumptively petty...a defendant can overcome this, and become entitled to a jury trial, showing that additional penalties [such as monetary fines] severe [as to indicate] that the legislature clearly determined that the offense is a serious one."

Related Websites:
* Debtor’s Prison is Alive and Well
* Do poor fathers deserve debtor’s prison.

* Legal Research and Citation Style in USA

* Dog law as applied to contempt hearings: Is it outrageous? You decide.
* Contempt of (Florida) court arrest enforcement outside the State of Florida: Is it legal?? Read this 2nd District Court of Appeals ruling.

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