Q: Does my case qualify for a Removal From State to Federal? Divorce was filed may 2019. The same time the Covid Pandemic..
was sweeping the nation. Motions and evidence submitted have never been acknowledged despite having the usps return receipts to prove they were recieved. After an emergency child support hearing garnished 66% of my wages including paying for daycare that was closed due to the pandemic I had to file bankruptcy. When I informed the Judge of the bankruptcy he ignored this and continued with the divorce trial. I have attempted to file motions that are unheard or dismissed without having a court hearing, I have attempted to appeal but either failed to correctly fill out the forms or just plain cannot afford the transcripts they require to prove the perjury I alleged by the pla. recently the court acknowledged evidence I submitted, set a hearing date and the plaintiff requested a postponement for a later date and submitted a cross motion with new demands. Does this qualify to remove this case from family court to a district court of NJ?
A: Divorce cases are rarely if ever removed to Federal Court. If you don't like a trial court ruling you can appeal to the Appellate Division. But statistically you will lose.
As to your inquiry concerning the filing of a bankruptcy petition and its impact on your family part matter, set forth below is an overview of the family law exceptions to the automatic stay provisions.
The Bankruptcy Abuse Prevention and Consumer Protection Act (11 USC sec. 362) provides that the automatic stay applicable in bankruptcy matters does not apply to the commencement or continuation of a legal proceeding against the debtor in the following settings:
• For divorce or dissolution of marriage except to the extent that the court proceeding seeks to determine the division of property owned by the person filing the bankruptcy petition.
• Concerning child custody or visitation.
• Regarding domestic violence.
• To establish or modify an order for child support and/or spousal support. Under the Act, A support obligation is defined in 11 USC sec. 101(14A) as an obligation for the payment of alimony and child support that arises from a court order or divorce settlement agreement.
• To establish paternity.
11 USC sec. 362 also provides that the automatic stay also does not prohibit:
• Withholding the debtor’s income for payment of an alimony or child support obligation entered pursuant to court order or statute.
• Revoking a debtor’s drivers license, recreational license, or professional or occupational license to enforce the debtor’s child support obligation in accordance with state child support enforcement statutes.
• Enforcing a debtor’s medical support obligation in accordance with federal and state child support enforcement statutes.
• Attaching a debtor’s federal or state income tax refund by or on behalf of a state or local child support enforcement agency to collect past-due spousal or child support in accordance with federal and state child support enforcement statutes.
• Reporting the debtor’s child support debt to a consumer reporting agency in accordance with federal child support enforcement requirements.
• Collecting a child support or alimony obligation from property that is not property of the debtor’s bankruptcy estate.
• The automatic stay does not prohibit the commencement or continuation of a criminal contempt proceeding against a debtor based on the debtor’s failure to pay a pre-bankruptcy spousal or child support debt if the purpose and effect of the criminal contempt proceeding is to punish the debtor’s failure to pay spousal or child support and not to coerce or require the debtor’s payment of spousal or child support.
• The automatic stay does not prohibit the commencement or continuation of an action against the debtor for divorce, equitable distribution, alimony, child custody, or child support if the action accrued after the debtor filed for bankruptcy and could not have been commenced before the debtor filed for bankruptcy and does not involve any act to obtain possession of property that is property of the debtor’s bankruptcy estate or to create, perfect, or enforce a lien against property that is property of the debtor’s bankruptcy estate.
• The automatic stay does not prohibit the collection, through civil contempt or otherwise, of court-ordered spousal or child support that accrues after the debtor files for bankruptcy as long as such action does not involve any act to obtain possession of property that is property of the debtor’s bankruptcy estate or to create, perfect, or enforce a lien against property that is property of the debtor’s bankruptcy estate.
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