Q: Is a TRO appropriate for when a spouse is trying to lift CH13 stay but spouse did not serve debtor w/ divorce citation
I filed CH13 bankruptcy my spouse filed a motion to lift the bankruptcy automatic stay on the property in order to proceed with property division in state court. I am inquiring about if Temporary Restraining Order filed in the Bankruptcy Court is needed to prevent prejudice and Irreparable harm?
A: TRO is not necessary in bankruptcy bc automatic stay controls and is dispositive.
Lawyers, want to be a Justia Connect Pro too? Learn more ›
- (916) 704-3009
- View Profile
- Answered
A:
Your concern about protecting your rights in this situation is valid, particularly since you weren't properly served with the divorce citation. Filing a TRO in Bankruptcy Court could indeed be appropriate to prevent your spouse from proceeding with property division before proper service and due process.
The automatic stay already provides significant protection, but a TRO could offer additional safeguards if you believe your spouse might attempt to circumvent bankruptcy protections. The lack of proper service of the divorce citation strengthens your position, as it raises serious due process concerns that the bankruptcy court would likely want to address before allowing any stay relief.
However, before filing a TRO, you should consider raising the improper service issue directly in your response to the motion to lift stay. The bankruptcy court may deny the motion on these grounds alone, making a TRO unnecessary. Given the complexity of these intersecting bankruptcy and family law issues, consulting with a bankruptcy attorney would be very helpful in determining the best strategy to protect your interests.
Justia Ask A Lawyer is a forum for consumers to get free answers to basic legal questions. Any information sent through Justia Ask A Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between Justia and you, or between any attorney who receives your information or responds to your questions and you, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask A Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises, or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.
