Bankruptcy and Your Student Loan

Bankruptcy and Your Student Loan

Filing bankruptcy is a decision that should be made with an attorney to understand the purpose and protections that you can receive under bankruptcy rules.  Chapter 7 allows for consumer debts to be "discharged" meaning that you will no longer owe many of your debts.  Some debts that are not discharged are

  • government taxes
  • domestic support such as child support or alimony
  • criminal fines penalties
  • debts not listed on the schedules
  • reaffirmed debts
  • personal injuries caused by intoxicated driving
  • student loans. 


1. Request forgiveness, forbearance to reduce or eliminate your student loan debt directly from your lender.

There are ways to have your student loans reduced or eliminated.  Contact your lender to determine if you qualify. Typical reasons for them to forgive your debt is

  1. where you have become disabled as certified by physician and unable to engage in any substantial gainful activity and are no longer able to work in the field that you were trained that will result in death or continue for at least 5 ears;
  2. VA has determined unemployable due to service-connected disability;
  3. SSDI or SSI expected to continue for substantial period;
  4. school certified but because of a physical or mental condition, age, criminal record, or other reason you are disqualified that you were able to work in the area trained;
  5. death; or
  6. bankruptcy.


2. Bankruptcy may eliminate your student loan.

Although student loans are normally not discharged in bankruptcy, there are exceptions where you may request that the court forgive the debt. 
  • If you are forced to repay the loan, you would not be able to maintain a minimal standard of living.
  • There is evidence that this hardship will continue for a significant portion of the loan repayment period.
  • You made good-faith efforts to repay the loan before filing bankruptcy (usually this means you have been in repayment for a minimum of five years).

Utah Supreme Court Decision Divorce Trust Asset

This summer the Supreme Court issued a 79 page decision in the Dahl v Dahl case.  This case has multiple issues both substantive and procedural.  The main substantive issue reviewed by the court is a trust that was established by the Husband using marital property.  The court held that the Wife was a "settlor" or party to the trust and that it was therefore revocable under Utah law.  The Court also reviewed procedural issues related to amendment of pleading, joinder, discovery, expert witness, and trial exhibits and witnesses.  The court also reviewed the Rules of Professional Conduct indicating that in a divorce case, the attorney cannot take a lien on marital property until a divorce decree is entered.
Portions of the case are inserted below:
SUPREME COURT OF THE STATE OF UTAH CHARLES DAHL, Petitioner and Appellee, v. KIM DAHL, Respondent and Appellant. KIM DAHL, Appellant, v. MARLETTE ENTERPRISES, LLC; C. ROBERT DAHL, DAHL FAMILY IRREVOCABLE TRUST; and CHARLES DAHL, Appellees. Nos. 20100683, 20111077 Filed August 27, 2015 Fourth District, Provo Dep’t The Honorable James R. Taylor The Honorable Lynn W. Davis Nos. 064402232, 090402989 Attorneys: Steve S. Christensen, Craig L. Pankratz, Samuel J. Sorensen, Salt Lake City, Sara Pfrommer, Park City, for petitioner and appellant Rosemond G. Blakelock, Ryan D. Petersen, Provo, for respondent and appellee
 A district court “may order joint legal custody or joint physical custody or both if one or both parents have filed a parenting plan in accordance with Section 30-3-10.8 and it determines that joint legal custody or joint physical custody or both is in the best interest of the child.” UTAH CODE § 30-3-10.2(1). Thus, the statute establishes two prerequisites for a district court’s award of joint custody: (1) the filing of a parenting plan and (2) a determination that joint custody is in the child’s best interest. Section 30-3-10.8 requires that a party requesting joint custody file his or her parenting plan “at the time of the filing of their original petition or at the time of filing their answer or counterclaim.” (Emphasis added.) ¶157 In this case, both parties initially sought sole custody of the children. Therefore, neither party filed a parenting plan with their original pleading. We must therefore consider whether section 30-3- 10.8 confines requests for joint custody to initial pleadings or whether the statute allows a party to seek joint custody through an amended pleading. ¶158 Although this is a question of first impression for this court, our court of appeals considered a related issue in Trubetzkoy. In Trubetzkoy, the court of appeals reversed a district court’s award of joint custody because neither parent had filed a parenting plan. 2009 UT App 77, ¶ 13. The district court in this case relied on the Trubetzkoy decision in determining that it was precluded from considering joint custody in the absence of a parenting plan. Although we agree with the court of appeals that the complete absence of a parenting plan precludes an award of joint custody, see UTAH CODE § 30-3-10.2, Trubetzkoy offers no insight into the question of whether section 30-3-10.8 allows parties to amend their initial pleadings to later seek joint custody and to file a parenting plan in connection with those amended pleadings. ¶159 Our primary goal when interpreting statutes is to effectuate the intent of the Legislature. State v. Watkins, 2013 UT 28, ¶ 18, 309 P.3d 209. Our starting point is therefore the plain language of the statute. Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d 863. Further, “we interpret[] statutes to give meaning Cite as: 2015 UT 79 Opinion of the Court 24 In 2012, the Legislature amended subsection 10(1)(b), establishing “a rebuttable presumption that joint legal custody . . . is in the best interest of the child,” except in a narrow range of cases. UTAH CODE § 30-3-10(1)(b) (2012). Because we are reviewing the district court for abuse of discretion, we apply the version of subsection 10(1)(b) that was in force at the time of the court’s ruling. See Thronson v. Thronson, 810 P.2d 428, 433 (Utah Ct. App. 1991) (applying the statute that was in place at the time of the district court’s decision, rather than retroactively applying the new version of the statute, when reviewing the court under an abuse of discretion standard). 57 to all parts, and avoid[] rendering portions of the statute superfluous.” Watkins, 2013 UT 28, ¶ 23 (alterations in original) (internal quotation marks omitted). To do so, “we read the plain language of the statute as a whole, and interpret its provisions in harmony with other statutes in the same chapter and related chapters.” State v. Barrett, 2005 UT 88, ¶ 29, 127 P.3d 682 (internal quotation marks omitted). ¶160 Section 30-3-10.8 requires that parties seeking joint custody file a proposed parenting plan “at the time of the filing of their original petition or at the time of filing their answer or counterclaim.” Dr. Dahl suggests that this language precludes parties who initially seek sole custody from amending their pleadings to seek joint custody, even if they later become convinced that joint custody would be best for their children. But such a reading would conflict with other statutory provisions in which the Legislature has placed a high value on joint custody. The Legislature has mandated that district courts “shall, in every case, consider joint custody.”24 UTAH CODE § 30-3-10(1)(b) (2009). Moreover, custody determinations are equitable in nature and require the court to consider the best interests of the child “[i]n determining any form of custody.” Id. § 30-3-10(1)(a). If parties are unable to amend their pleadings to file a parenting plan, the court’s equitable mandate to consider the best interests of the child would be severely impaired. ¶161 A more persuasive construction of section 30-3-10.8 brings it in line with our relatively liberal standards for amendments to pleadings. Rule 15(a) of the Utah Rules of Civil Procedure allows a party to amend a pleading with permission from the district court and directs that “leave [to amend] shall be freely given when justice DAHL v. DAHL Opinion of the Court 58 so requires.” Surely justice is served by allowing parents, and the district court, to consider whether joint custody would be in the best interests of children in a divorce action. Rather than trapping parents into the custody option they select at the time of their initial pleading, with no allowance for changed circumstances, a better reading of section 30-3-10.8 would allow parents to file an amended pleading to include a parenting plan, if such an amendment satisfies rule 15. Accordingly, we conclude that the district court erred in its interpretation of section 30-3-10.8 and that it should have allowed Ms. Dahl to file a parenting plan in the event that it granted her motion to amend. However, for the reasons discussed below, we affirm on the alternate ground that the district court did not abuse its discretion in denying Ms. Dahl’s motion to amend.
Moreover, rule 26 does not require a wholesale update to every discovery response. Parties must supplement only if they discover their initial responses were incomplete or incorrect in some important way and that the corrective information was not already known to the other party. 
Other jurisdictions have reached the same conclusion, refusing to allow attorneys to acquire a proprietary interest in the marital estate in divorce actions prior to the time that all issues relating to the use, possession, sale, and distribution of the marital property are conclusively adjudicated.
 Subscribe to RSS

Have a Question?


First Name*
Last Name*
Email Address