FFoorrddhhaamm LLaaww RReevviieeww Volume 59 Issue 3 Article 4 1990 ""AA FFrreesshh SSttaarrtt wwiitthh SSoommeeoonnee EEllssee''ss PPrrooppeerrttyy"":: LLiieenn AAvvooiiddaannccee,, tthhee HHoommeesstteeaadd EExxeemmppttiioonn aanndd DDiivvoorrccee PPrrooppeerrttyy DDiivviissiioonnss UUnnddeerr SSeeccttiioonn 552222((ff))((11)) ooff tthhee BBaannkkrruuppttccyy CCooddee Phyllis A. Klein Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons RReeccoommmmeennddeedd CCiittaattiioonn Phyllis A. Klein, "A Fresh Start with Someone Else's Property": Lien Avoidance, the Homestead Exemption and Divorce Property Divisions Under Section 522(f)(1) of the Bankruptcy Code, 59 Fordham L. Rev. 423 (1990). Available at: https://ir.lawnet.fordham.edu/flr/vol59/iss3/4 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. "A FRESH START WITH SOMEONE ELSE'S PROPERTY":' LIEN AVOIDANCE, THE HOMESTEAD EXEMPTION AND DIVORCE PROPERTY DIVISIONS UNDER SECTION 522(f)(1) OF THE BANKRUPTCY CODE INTRODUCTION When marital property is distributed during divorce,2 the family home is frequently given to one spouse and a money judgment to the other.3 To assure payment by the debtor spouse of the non-debtor's share of the net marital assets, the state divorce court often places a lien' on the home retained by the debtor.5 Because of the widespread adoption of equitable distribution statutes,6 divorce property divisions represent a state court judgment based on principles of fairness and sharing,* regardless of whether the parties have consented to a settlement agreement or the court has imposed its own determination.' When debtors file a petition for bankruptcy before the lien is satisfied, however, they may seek to reduce or eliminate a postmarital obligation secured to the former mari- tal property by using provisions of the Bankruptcy Code9 that are in- tended to ensure a fresh start for debtors.'° 1. Farrey v. Sanderfoot (In re Sanderfoot), 899 F.2d 598, 608 (7th Cir.) (Posner, J., dissenting), cert granted, 111 S. Ct. 507 (1990) (No. 90-350). 2. See infra note 8. 3. See Sanderfoot, 899 F.2d at 599; Boyd v. Robinson, 741 F. 2d 1112, 1113 (8th Cir. 1984); see also R. Aaron, Bankruptcy Law Fundamentals § 7.01[3), at 7-12.1 (1990) ("The house is frequently the major asset of the spouses... 4. See infra note 18 (discussing liens and bankruptcy). 5. State divorce laws empower the divorce court to make such property divisions. See 2 H. Clark, The Law of Domestic Relations in the United States § 16.1, at 176-77 (1987). Two essential characteristics in the cases denying avoidance are: (1) the lien imposed as part of the divorce proceedings is written into the final divorce decree and (2) the lien is placed on the marital home, not on the debtor's property in general. See Borman v. Leiker (In re Borman), 886 F.2d 273, 274 (10th Cir. 1989); Boyd v. Robinson, 741 F.2d 1112, 1113 (8th Cir. 1984). The Tenth Circuit avoided a lien in Maus v. Maus, 837 F.2d 935 (10th Cir. 1988), holding that the lien was not placed on the marital home and the property settlement made grant of the property "free and clear" of the non-debtor spouse's claims. See id. at 939. The court subsequently limited Maus to its facts in Parker v. Donahue (In re Donahue), 862 F.2d 259, 263-65 (10th Cir. 1988). 6. See infra note 39. 7. See infra notes 40-42 and accompanying text. 8. Divorce property distributions in which liens are enforceable by the court, and are therefore vulnerable to interpretation as court-obtained liens, are determined either by the divorce court or by agreement of the parties prior to the court's final judgment grant- ing the divorce. See infra text accompanying notes 44-45. In this Note, "property settle- ment" refers to consensual divorce property divisions that have been incorporated into the final decree. 9. [Bankruptcy Reform] Act of Nov. 6, 1978, Pub. L. No. 95-598, 92 Stat. 2549 (1978) (codified as amended at 11 U.S.C. §§ 101-1330 (1988)) [hereinafter the Bank- ruptcy Code or the Code]. 10. See infra notes 105-148 and accompanying text (discussing grounds on which FORDHAM LAW REVIEW [Vol. 59 Under federal bankruptcy law, the debtor is permitted to exempt" a homestead12 from the reach of creditors.'3 A homestead is generally real property that a debtor uses as a residence. The purpose of exemptions "4 is to allow the debtor to come through bankruptcy with adequate posses- sions for a fresh start. 5 Section 522(f)(l),16 a new provision of the 1978 Bankruptcy Reform Act,17 specifically gives debtors the right to avoid certain liens" on exempt property.9 Debtors have sought to apply the debtors have attempted to avoid divorce decree homestead liens and citing relevant cases). 11. See 11 U.S.C. § 522 (1988) (Bankruptcy Code exemption provision). Section 522 applies to individual debtors, see 11 U.S.C. § 103(a) (1988), who most commonly file for liquidation under Chapter 7 or for readjustment of their debts under Chapter 13. See G. Treister, J. Trost, L. Forman, K. Klee & R. Levin, Fundamentals of Bankruptcy Law § 7.01, at 295 (2d ed. 1988) [hereinafter G. Treister]; see generally T. Crandall, F. Hagedorn & F. Smith, Debtor-Creditor Law Manual S 13.07[3], at 13-39 to -41 (1985) (discussing protection of debtors' exemptions) [hereinafter T. Crandall]; G. Treister, supra, § 1.04, at 17-19 (describing Code chapters). 12. See infra notes 59-70 and accompanying text. 13. The exemptions that are defined in section 522(b) of the Code allow the debtor to remove certain property from the estate that the trustee brings together in accordance with section 541 for distribution to the debtor's creditors. See 11 U.S.C. §§ 522(b), 541 (1988). The purpose of exemptions is to protect the debtor's fresh start by leaving the debtor an amount of real and personal property that is necessary for beginning a new life. See infra notes 56, 58 and accompanying text. 14. In divorce decree lien avoidance cases, the homestead claimed as exempt by the debtor had been the spouses' marital home prior to divorce. See Farrey v. Sanderfoot (In re Sanderfoot), 899 F.2d 598, 599-600 (7th Cir.), cert. granted, 111 S. Ct. 507 (1990). In bankruptcy, after debtors claim their exemption, the property defined in divorce as the marital home is referred to as the debtor's homestead. See id. at 599. 15. See H.R. Rep. No. 595, 95th Cong., 1st Sess. 126 (1977), reprinted in 1978 U.S. Code Cong. & Admin. News 5963, 6318 [hereinafter House Report]. 16. Section 522(f)(1) reads: "Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled.... if such lien is- (1) a judicial lien; . .." 11 U.S.C. § 522(f)(1) (1988). 17. [Bankruptcy Reform] Act of Nov. 6, 1978, Pub. L. No. 95-598, 92 Stat. 2549 (1978) (codified as amended at 11 U.S.C. §§ 101-1330 (1988)). See infra note 166. 18. A lien is one method by which unsecured creditors who have successfully ob- tained a court judgment seek to enforce that judgment. See T. Crandall, supra note 11, 5.01, at 5-3. Outside of bankruptcy law, a lien is "an interest in the debtor's property that affords the creditor the legal power to ultimately satisfy the debt from the assets subject to the lien." Id. The lien is a right created either by agreement or under state law. See id. 6.05[2][a], at 6-67; 51 Am. Jur. 2d Liens § 6 (1970). "Lien" is defined in the Code as a "charge against or interest in property to secure payment of a debt or performance of an obligation;..." 11 U.S.C. § 101(33) (1988). A lien in bankruptcy is a claim, or right to payment, that is allowed under Section 502 and secured to property in which the debtor's estate has an interest. See id. §§ 101(4)(A), 502; see also Bowmar, Avoidance of Judicial Liens That Impair Exemptions in Bank- ruptcy: The Workings of 11 U.S.C. § 522(f)(1), 63 Am. Bankr. L.J. 375, 377-79 (1989) (describing allowed claims and liens in bankruptcy). On types of liens defined in the Code, see infra notes 77-78 and accompanying text. 19. See 11 U.S.C. § 522(f)(1)(1988). In addition to removing an encumbrance from the exempt property, avoidance under section 522(f)(1) also reduces the previously se- cured claim to unsecured debt. See T. Crandall, supra note 11, 13.07[3], at 13-39. Bankruptcy offers relief to debtors by allowing most of their debts to be discharged, 1990] BANKRUPTCY AND DIVORCE avoidance powers of the section to property division divorce decree liens on their homesteads.2" Because of the complex interrelationship between bankruptcy and domestic relations laws,2 a debtor spouse may succeed in avoiding the lien,22 thereby putting the non-debtor spouse on line with all other unsecured creditors to collect whatever proceeds are available from the debtor's estate23 and effectively nullifying the divorce property division.24 The question of whether the lien avoidance provision of the Bank- ruptcy Code applies to divorce property divisions' is "muddied"26 by the variety of theories courts have used to support decisions denying which leaves unsecured bankruptcy creditors limited to payment out of whatever pro- ceeds are available from the debtor's estate. See infra note 57 (discussing discharge of debts). The debtor is relieved of personal liability for the underlying debt. See Bowmar, supra note 18, at 379. Thus, the result of lien avoidance of dischargeable debts is en- hancement of both parts of the fresh start policy for individual debtors: exemption of certain property, which is intended to provide basic necessities for starting anew, and discharge of debts, which essentially protects the debtor's future earnings from liabilities the debtor incurred in the past. See T. Crandall, supra note 11, 10.02[2], at 10-3, ¢ 13.07[3], at 13-38; see also Cross, The Application of Section 522(f) of the Bankruptcy Code in Cases Involving Multiple Liens, 6 Bankr. Dev. J. 309, 310 (1989) (on usefulness of section 522(f) to debtors in maximizing exemptions); Vukowich, Debtors' Exemption Rights Under the Bankruptcy Reform Act, 58 N.C.L. Rev. 769, 769 (1980) ("Permitting debtors to retain part of their assets while relieving them of all or most of their debts puts them on the road to a new financial future without the necessity of assistance...."). 20. See infra Parts IIA-B and accompanying text. Property distributions that the debtor may attempt to avoid pursuant to section 522(f)(1) are limited to dischargeable property debts; exempt property remains liable for debts that are non-dischargeable. See 11 U.S.C. § 522(c)(2)(A)(i) (1988); see also infra notes 83-95 and accompanying text (on relationship between exempt property, debts and lien avoidance). 21. See Farrey v. Sanderfoot (In re Sanderfoot), 899 F.2d 598, 605 (7th Cir.) (quoting In re Worth, 100 Bankr. 834, 837 (Bankr. N.D. Tex. 1989)), cert. granted, Ill S. Ct. 507 (1990) (No. 90-350). 22. See infra Part IIA and accompanying text. 23. See infra note 57 and accompanying text. 24. The percentage of the total property division that can be avoided depends largely upon the debtor's exemption allowance. See infra notes 70-71 and accompanying text. 25. Like the lower courts, the four circuit courts that have addressed lien avoidance in the context of the homestead exemption and divorce property divisions are divided. See infra notes 105-148 and accompanying text. Split panels of the Seventh Circuit and the Ninth Circuit have avoided divorce-decree homestead liens. See Farrey v. Sanderfoot (In re Sanderfoot), 899 F.2d 598, 605 (7th Cir.), cert. granted, 111 S.C t. 507 (1990) (No. 90-350); Stedman v. Pederson (In re Pederson), 875 F.2d 781, 784 (9th Cir. 1989). In the Eighth Circuit, on the other hand, the majority denied lien avoidance in Boyd v. Robin- son, 741 F.2d 1112, 1115 (8th Cir. 1984). A panel of the Tenth Circuit unanimously upheld a divorce-decree homestead lien in Borman v. Leiker (In re Borman), 886 F.2d 273, 274 (10th Cir. 1989), citing its reasoning in Parker v. Donahue (In re Donahue), 862 F.2d 259 (10th Cir. 1988). Although Donahue addressed lien avoidance only in dictum, the court, in defining an unrecorded divorce decree homestead lien as secured debt, spe- cifically limited to its facts Maus v. Maus, 837 F.2d 935 (10th Cir. 1988), a Tenth Circuit case decided less than a year earlier in which the court granted lien avoidance. See Dona- hue, 862 F.2d at 264-65; see also infra note 117 (discussing Maus). 26. See In re Rittenhouse, 103 Bankr. 250, 252 (D. Kan. 1989) ("With some trepida- tion, the court wades into waters muddied before it with little hope of settling anything but the instant dispute."). FORDHAM LAW REVIEW [Vol. 59 avoidance27 and by uncertainty about the role of agreement by the parties in an uncontested divorce.28 Courts have usually focused on issues of statutory construction and legislative intent, but traditional principles that have long guided the relationship between federal law and state do- mestic relations law offer another dimension to the legal and policy ten- sions addressed in the divorce lien avoidance case law. In large part, the judicial disagreement about homestead lien avoidance in the divorce set- ting reflects a conflict between the fresh start policy that is fundamental to the federal law of bankruptcy29 and the equitable goals that are the foundation of modem divorce statutes.3° This Note argues that liens imposed on the marital home by state courts in divorce decrees should not be subject to the debtor's avoidance power under the Bankruptcy Code. Part I examines modem divorce law as it applies to homestead liens and gives a brief history and description of the lien avoidance provision. Part II analyzes approaches to the lan- guage of the provision in the context of divorce decree homestead liens. Part III offers a resolution of the issue based upon statutory construction of section 522(f)(1) within the framework of the relationship between domestic relations law and federal law. This Note concludes that Con- gress and the United States Supreme Court should expressly exclude di- vorce decree homestead liens from the reach of section 522(f)(1) in order to correct the imbalance that is created between state divorce law and the Bankruptcy Code when debtors are permitted to avoid such liens. I. BACKGROUND A. State Divorce Law and Property Division Liens The past twenty years have "witnessed a virtual revolution in matri- monial law in the United States."'" At the same time that federal bank- ruptcy law was undergoing major revision, states began to reform their divorce laws in response to significant changes in American attitudes to- wards marriage and divorce.32 Some form of no-fault divorce, a ground for divorce initiated by California in 1970,13 is part of the domestic rela- 27. See infra Part IIB and accompanying text. 28. See infra notes 117, 140 and accompanying text. 29. See infra note 56 and accompanying text. 30. See infra notes 39-45 and accompanying text. The United States Supreme Court has agreed to decide whether a debtor spouse can use section 522(f)(1) unilaterally to avoid a lien imposed by a state divorce court on the former family home. See Farrey v. Sanderfoot (In re Sanderfoot), 899 F.2d 598 (7th Cir.), cert. granted, 111 S. Ct. 507 (1990) (No. 90-350). 31. J. Gregory, The Law of Equitable Distribution, at v (1989); see also L. Weitzman, The Divorce Revolution, at ix (1985) (after California adopted first no-fault divorce law, "the entire landscape of American family law [was] transformed in a mere decade"); Scheible, Defining "Support" Under Bankruptcy Law: Revitalization of the "Necessaries" Doctrine, 41 Vand. L. Rev. 1, 2 (1988) ("divorce law in the United States has undergone radical changes in the past few decades"). 32. See L. Halem, Divorce Reform 233, 237-38 (1980). 33. Fault-based grounds for divorce were required by every state prior to 1970. See L. 1990] BANKRUPTCY AND DIVORCE tions law of nearly every state today,34 manifesting widespread recogni- tion that "parties to irretrievably broken marriages are best off ending such relationships.",31 Divorce laws governing property divisions have also changed drasti- cally in recent years.36 Title-based37 statutes, under which the court was not permitted to divide marital property by transferring title from one spouse to the other,3' have been replaced in almost every state by equita- ble distribution laws, which do allow such title assignments.39 In imple- menting the general theory that marriage is a partnership or shared enterprise and that post-divorce property should be distributed accord- ingly,' equitable distribution laws4 give the divorce court discretion to Weitzman, supra note 31, at x. Traditional moral concepts about the nature and perma- nence of the marital relationship were embodied in statutes requiring that "[o]ne party had to be judged guilty of some marital fault, such as adultery or cruelty, before a divorce could be granted." Id. The no-fault laws, first adopted by California in 1970, were the first significant alteration in divorce codes in the United States in the twentieth century. See L. Halem, Divorce Reform 233, 238 (1980). The California law recognized "irrecon- cilable differences" as a legal cause for divorce. See L. Weitzman, supra note 31, at x. 34. State laws vary considerably, some permitting irreconcilable differences without further limitation as a ground for divorce, while others permit conditional no-fault, such as a waiting period between separation and divorce. See, e.g., Cal. Civ. Code § 4506 (West 1983) (irreconcilable differences or incurable insanity); N.Y. Dom. Rel. Law § 170 (McKinney 1988) (living separately and apart for at least one year pursuant to a separa- tion agreement, or, alternatively, one of five traditional grounds). See generally State Di- vorce Laws, Fano. L. Rep. (BNA) at 401:001-453:001 (summarizing divorce laws of each state). In some states, the misconduct of the parties continues to be one factor in property division determinations. See J. Gregory, supra note 31, 9.03, at 9-11; 2 H. Clark, supra note 5, § 16.3, at 194. 35. J. Gregory, supra note 31, at v. 36. See id. 37. See id. 1.01, at 1-1. 38. See Krauskopf, A Theory for "Just" Division of Marital Property inM issouri, 41 Mo. L. Rev. 165, 167-68 (1976). 39. See J. Gregory, supra note 31, 9 1.06, at 1-16. Mississippi is the only state that has not clearly adopted the system of permitting divorce courts to divide certain property owned by the parties at the time of divorce. See id.;O ldham, Tracing Commingling. and Transmutation, 23 Fam. L.Q. 219, 219 and n.1 (1989). However, the Mississippi courts do sometimes use their equitable powers to effect a transfer of property. See J. Gregory, supra note 31, 9 1.06, at 1-19. 40. See J. Gregory, supra note 31, 9 1.02, at 1-5; 2 H. Clark, supra note 5, § 16.3, at 194; see also Krauskopf, Theories of Property Division/Spousal Support: Searching for Solutions to the Mystery, 23 Fam. L.Q. 253, 256-57 (1989) (the purpose of court-ordered economic settlement at marriage dissolution is fair sharing so one party "does not suffer unduly while the other gains because of marriage experience" and to achieve fair sharing of benefits and burdens of the marriage). Because state statutes vary widely, a universal definition of equitable distribution that is more specific than the principle of shared enter- prise is difficult to formulate. See J. Gregory, supra note 31, 9 1.02, at 1-6. 41. Although there are many variations in property division statutes, the states can generally be divided into two groups: community property states, in which each spouse has an interest in the assets of the marriage during the marriage, and common-law prop- erty states, in which each spouse owns the property held in his or her name. See 2 H. Clark, supra note 5,§ 16.1, at 177-78. Almost all of the common-law states have adopted equitable distribution laws. See supra note 39. In some of the common-law equitable FORDHAM LAW REVIEW [Vol. 59 assign property.4' When the marital home is the only substantial asset, the court often divides the net marital assets by giving one spouse the property and the other a money judgment secured by a lien on the prop- erty.43 Liens on homestead property that secure a money judgment are based either on settlements agreed upon by the parties and approved by the judge' or, in contested divorces, on fact-specific determinations by state divorce courts.45 Property division has begun to replace alimony as a device for adjust- ing the financial relationship of the spouses,46 partly because women to- day are more likely to hold jobs outside the home,47 and partly because property division promotes finality in resolving a divorcing couple's fi- nancial obligations.48 In encouraging finality, as well as peaceable reso- distribution states, spouses' property is classified as either marital or separate, with the courts dividing only the marital property; in others, the courts divide all property owned by either spouse. See 2 H. Clark, supra note 5, § 16.1, at 177-78. The theory of shared enterprise derived from the community property system underlies the equitable distribu- tion laws of the common-law states. See J. Gregory, supra note 31, 1.02, at 1-5. Some common-law states grant each spouse a "vested interest" in the marital property after a matrimonial action is filed, although the amount of the interest is unknown until the final decree is entered by the divorce court. 2 H. Clark, supra note 5, at 177-78 nn. 11-12. The Uniform Marital Property Act provides that each spouse owns an "undivided one-half interest in the marital property" at the time the property is acquired. Unif. Marital Prop. Act § 4(c) and comment, reprinted in Fam. L. Rep. (BNA) at 201:0100-0101 (1983); see Wis. Stat. Ann. § 766.31(3) (West 1988). In contrast, under most equitable distribution statutes, family law interests in marital property are "delayed-action in nature and come to maturity only during the dissolution process." Unif. Marital Prop. Act § 4 comment, reprinted in Fam. L. Rep. (BNA) at 201:0101 (1983). 42. See 2 H. Clark, supra note 5, § 16.1, at 176-77; J. Gregory, supra note 31, 1.03, at 1-6. Most statutes provide for either equal or equitable distribution. See generally State Divorce Laws, Fam. L. Rep. (BNA) at 401:001-453:001 (1989) (summarizing each state's divorce property statutes). In statutes or through judicial interpretation, states also usually provide the court with factors to consider. See, e.g., Ark. Stat. Ann. § 9-12- 315(a)(1)(A) (1991) (one-half to each party but equitable distribution permitted if court takes nine factors into consideration); Col. Rev. Stat. § 14-10-113(1) (1987) (equitable distribution based on all relevant factors, including four specified); N.Y. Dom. Rel. Law § 236(B)(5)(d) (McKinney 1986) (equitable distribution, listing thirteen factors, includ- ing "any other factor which the court shall expressly find to be just and proper"). See generally State Divorce Laws, supra, at 401:001-453:001 (surveying statutory law on fac- tors courts take into account in making property divisions); 2 H. Clark, supra note 5, § 16.3, at 190-96 (same). The equitable distribution provision of the Uniform Marriage and Divorce Act" 'authorizes the division.., as the primary means of providing for the future financial needs of the spouses.'" Levy, An Introduction to Divorce-PropertyI ssues, 23 Fam. L.Q. 147, 148 n.4 (1989) (quoting Commissioners' Prefatory Note to the Unif. Marriage and Divorce Act, § 307, 9A U.L.A. 5 (1987)); see also 2 H. Clark, supra note 5, § 16.1, at 181-82 (justifiable to infer from statutes that "purpose of the property division is as much to provide for the financial needs of the spouses after the divorce as to award to each what he or she equitably owns"). 43. See supra note 3 and accompanying text. 44. See 2 H. Clark, supra note 5, § 19.1, at 408-09 (discussing settlement agreements). 45. See supra note 42 and accompanying text. 46. See 2 H. Clark, supra note 5, § 16.1, at 175. 47. See id. 48. See Scheible, supra note 31, at 2-3. 1990] BANKRUPTCY AND DIVORCE lution through negotiation rather than litigation,49 the policies of current divorce law attempt to afford both former spouses a fresh start.so B. The Debtor's Fresh Start and Divorce Property Divisions 1. The Homestead Exemption and Section 522(f)(1) Bankruptcy law seeks to provide a fresh start of another sort-a fresh start for debtors.5 By the 1970s, the ascendancy of the consumer credit industry52 and a "rising tide of consumer bankruptcies"" threatened this traditional policy of protecting debtors, leading Congress to modernize bankruptcy law in the Bankruptcy Reform Act of 1978.1' Placing strong emphasis on effective implementation" of the fresh start policy for debt- ors,56 Congress sought to ensure that the debtor would emerge from bankruptcy with most of his debts discharged," and with at least some of 49. See id. at 2; 2 H. Clark, supra note 5, § 19.1, at 410 (general considerations relat- ing to purposes and advantages of property settlements). 50. See Scheible, supra note 31, at 3. 51. See infra note 56. 52. See House Report, supra note 15, at 116, reprinted in 1978 U.S. Code Cong. & Admin. News 5963, 6076 ("Consumer finance has become a major industry, and more and more goods have been sold on credit."). 53. See I Report of the Comm'n on the Bankruptcy Laws of the United States, H.R. Doc. No. 137, 93rd Cong., Ist Sess. 2 (1973) [hereinafter Commission Report), reprinted in [2 App. Legis. Hist.] L. King, Collier on Bankruptcy I at 1-2 (15th ed. 1990) [hereinaf- ter Collier on Bankruptcy (15th ed.)]; see also 124 Cong. Rec. S14,719 (daily ed. Sept. 7, 1978) (remarks of Sen. DeConcini), reprinted in [3 App. Legis. Hist.] Collier on Bank- ruptcy (15th ed.), supra, at viii-4. 54. See [Bankruptcy Reform] Act of Nov. 6, 1978, Pub. L. No. 95-598, 92 Stat. 2549 (1978). The 1978 statute, often referred to as the Bankruptcy Reform Act of 1978, re- placed the 1898 Bankruptcy Act. See G. Treister, supra note 11, § 1.01, at 1. See gener- ally Klee, Legislative History of the New Bankruptcy Law, reprinted in [2 App. Legis. Hist.], Collier on Bankruptcy (15th ed.), supra note 53, at vi, xxv-xxvii (describing ten- year legislative history of Bankruptcy Code and suggesting order in which to use sources for interpreting Code's provisions). 55. See Ginsberg, Introduction to the Symposium: The Bankruptcy Reform Act of 1978 -. A Primer, 28 DePaul L.Rev. 923, 923 (1979) (Code reflects a "swing of the pendulum from the spirit of creditor protection to the spirit of debtor protection in the legal age of the consumer"). 56. House Report, supra note 15, at 126 ("a debtor that goes through bankruptcy comes out with adequate possessions to begin his fresh start"), reprinted in 1978 U.S. Code Cong. & Admin. News 5963, 6087. The "fresh start" concept has traditionally been a primary goal of bankruptcy law. See Local Loan Co. v. Hunt, 292 U.S. 234, 244 (1934) (bankruptcy "gives to the honest but unfortunate debtor.., a new opportunity in life... unhampered by the pressure and discouragement of preexisting debt"). 57. See House Report, supra note 15, at 128 ("Perhaps the most important element of the fresh start for a consumer debtor after bankruptcy is discharge."), reprinted in 1978 U.S. Code Cong. & Admin. News 5963, 6089. A discharge bars "all future legal proceed- ings for the enforcement of the discharged debt .... ." [Index & Tables] Collier on Bankruptcy (15th ed.), supra note 53, at GT-5. Discharge measures the rights of claim- ants against the individual debtor and determines which assets should be kept from credi- tors. See T. Jackson, The Logic and Limits of Bankruptcy Law 225 (1986). The primary effect of discharge for the debtor is relief from personal liability for pre-petition debts. See 11 U.S.C. § 524 (1988) (provision defining protections for debtor to preserve effective- ness of discharge). If a debt is discharged, the creditor's non-bankruptcy entitlement will 430 FORDHAM LAW REVIEW [Vol. 59 his property exempt from the claims of his creditors.58 In keeping with the fresh start policy, section 522(b)"9 makes the tradi- tional homestead exemption' available to debtors. Debtors' exemptions are given further protection61 in section 522(f)(1),62 which enables debt- ors to avoid certain liens on their exempt property, including their home- steads. 3 The extent to which debtors can avoid a lien depends primarily upon the types and amounts of homestead property they can exempt.64 The Code authorizes states65 to choose between limiting the debtor to the exemptions allowed under state law66 or permitting a debtor to choose be treated under bankruptcy law. See T. Jackson, supra, at 225. The creditor will share in the distribution from the debtor's estate and may not seek any further payment from the debtor. See G. Treister, supra note 11, §§ 7.05, at 311, and 7.10(g), at 347 (effect of discharge for individual debtors in Chapters 7 and 13). 58. See G. Treister, supra note 11, § 7.02, at 299 ("One way the Bankruptcy code works to give the debtor a fresh start is through the exemption provisions."). 59. 11 U.S.C. § 522(b) (1988). 60. See generally T. Crandall, supra note 11, S 6.07[l][d], at 6-132-35 (describing state homestead exemptions). The federal definition of homestead refers to property that the debtor or a dependant uses as a residence but also includes personal property and several other kinds of real property up to an aggregate value of $7,500. See 11 U.S.C. § 522(d)(1) (1988). Although most states have exemption laws, their substance varies widely. See T. Crandall, supra note 11, 6.07[l][d], at 6-132. State definitions of homestead usually require that the property be used as a residence. See, e.g., Wash. Rev. Code Ann. § 6.13.010(1) (Supp. 1991) ("The homestead consists of the dwelling house"); Wis. Stat. Ann. § 815.20 (Supp. 1990) ("An exempt homestead... selected by a resident owner and occupied by him or her"). But see Tex. Prop. Code Ann. § 41.002 (1991 Supp.) (defining homestead as property "used for the purposes of an urban home or as a place to exercise a calling or business in the same urban area"). The bankruptcy laws of the United States have always permitted debtors to exempt some property from the reach of creditors. See 3 Collier on Bankruptcy (15th ed.), supra note 53, 1 522.01, at 522-8. The homestead exemption has been a primary source of debtor protection since 1839, when it first appeared in the laws of the Republic of Texas. See Riesenfeld, Homestead and Bankruptcy in Colorado and Elsewhere, 56 U. Colo. L. Rev. 175, 175 (1985). 61. For a comparison with debtors' lien avoidance rights on exempt property under the 1898 Bankruptcy Act, see infra note 166. 62. See 11 U.S.C. § 522(f)(1) (1988). 63. See id. The bankruptcy trustee has broad lien avoidance powers; the debtor is limited to section 522(f). See 11 U.S.C. § 522(f) (1988); Treister, supra note 11, § 7.03, at 305; see also Treister, supra note 11, § 4.03, at 137-91 (survey of trustee's avoiding powers). 64. See 11 U.S.C. §§ 522(b)(1)-(2) (1988). 65. See 11 U.S.C. § 522(b)(2)(A) (1988). 66. Like the 1898 Act, the Bankruptcy Code permits debtors to use state exemption statutes. See 3 Collier on Bankruptcy (15th ed.), supra note 53, %5 22.02, at 522-10-11. In contrast to the 1898 Act, however, and like the 1867 Bankruptcy Act, the Code also offers a federal exemption scheme. See id. States may withdraw or "opt out" of the federal scheme, thereby restricting debtors domiciled in those states to their state exemp- tion laws, but section 522(b)(1) requires that states must take the step of indicating specif- ically that its citizens are not authorized to use the federal exemption. See 11 U.S.C. § 522(b)(1); 3 Collier on Bankruptcy (15th ed.), supra note 53, 522.02, at 522-12; see, e.g., Neb. Rev. State § 25-15,105 (1989) ("The federal exemptions provided in [the Bank- ruptcy Code] are hereby rejected by the State of Nebraska. The State of Nebraska elects to retain the personal exemptions provided under Nebraska statutes and the Nebraska Constitution ... ");N .Y. Debt. & Cred. Law § 284 (McKinney 1990 and Supp. 1991) 1990] BANKRUPTCY AND DIVORCE the exemptions provided in the Code.67 Some three-quarters of the states require debtors to use their state homestead statutes.68 Other states al- low debtors to elect either their state homestead law or the federal home- stead provision.69 Because homestead allowances vary widely from state to state, the homestead liens that debtors can avoid range from below the federal level of $7,500 to substantially over $80,000.70 Consequently, the proportional impact of homestead lien avoidance on divorce property di- visions is dependent upon the debtor's homestead entitlement."' Within the homestead allowance, debtors may avoid liens encumber- ("debtors domiciled in this state are not authorized to exempt from the estate property that is specified under subsection (d) of [§ 522(b) of the Bankruptcy Code]"). Congress rejected efforts by reformers to require a uniform federal exemption in order to overcome the wide variations in state laws. See I Commission Report 169-71, supra note 53, reprinted in [2 App. Legis. Hist.] Collier on Bankruptcy (15th ed.), supra note 53, at 1-1-169-71. See generally Haines, Section 522's Opt-Out Clause.: Debtors' Bank- ruptcy Exemptions in a Sorry State, 1983 Ariz. St. L.J. 1, 5-10 (background of the "opt- out" clause). 67. See 11 U.S.C. § 522(d) (1988) (defining the federal "menu" listing types of prop- erty and the aggregate value of each that can be exempted). In addition to real or per- sonal property used as a residence, types of exempt property include one motor vehicle, household furnishings, professional books or tools, professionally prescribed health aids and various benefits. See id. Section 522(d)(1) is commonly referred to as the federal homestead exemption. See G. Treister, supra note 11, § 7.02, at 301. In addition to the section 522(d) list, debtors may also exempt any property that is exempt under federal law, such as social security payments and veterans benefits. See II U.S.C. § 522(b)(2)(A); House Report, supra note 15, at 360-61, reprinted in 1978 U.S. Code Cong. & Admin. News 5963, 6316. State exemption provisions vary widely in types and amounts of property that can be exempted. See, e.g., N.Y. Debt. & Cred. Law §§ 282- 283 (McKinney 1990) (exemptions include motor vehicles not exceeding 52,400 in value); S. D. Codified Laws Ann. § 43-45-2 (1983) (books and pictures absolutely exempt). 68. See 3 Collier on Bankruptcy (15th ed.), supra note 53, 522.02, at 522-11 n.4a (listing states that have enacted legislation prohibiting their citizens from electing the section 522(d) federal exemption scheme). 69. See id. at 522.02, at 522-I1. 70. See, e.g., Ala. Code § 6-10-2 (Supp. 1990) (S5,000 homestead exemption); N.D. Cent. Code § 47-18-01 (Supp. 1989) ($80,000 of debtor's equity); N.Y. Civ. Prac. L. & R. 5206 (McKinney Supp. 1990) ($10,000); Wash. Rev. Code Ann. § 6.13.030 (Supp. 1991) ($30,000); Wis. Stat. Ann. § 815.20(l) (Supp. 1990) (S40,000). Some states define home- stead allowance in acreage rather than dollar value. See, e.g., Kan. Stat. Ann. § 60-2301 (1983) (160 acres of farming land or one acre within an incorporated town or city); Tex. Prop. Code Ann. § 41.002 (Vernon 1991 Supp.) (urban home, not more than one acre;, rural home, up to 100 acres for a single, adult person, or up to 200 acres for a family). Some commentators have criticized the Code's exemption provisions on the grounds that debtors in states with liberal exemptions are able to get "a 'head start' rather than a 'fresh start'." See Vukowich, supra note 19, at 802. The constitutionality of the opt-out provision has withstood challenge in the appellate courts against arguments that the bankruptcy laws are required to be uniform and that the opt-out provision is an imper- missible delegation of congressional power to the states. See T. Crandall, supra note I1,I 13.07[l], at 13-32-33; G. Treister, supra note 11, § 7.02, at 299-301 (citing, as an example, Rhodes v. Stewart, 705 F.2d 159 (6th Cir. 1983)). 71. In Farrey v. Sanderfoot, for example, the debtor husband claimed the 540,000 Wisconsin homestead exemption and then sought to avoid his ex-spouse's lien of over $29,000, which was her entire share of the net marital assets. See Farrey v. Sanderfoot (In re Sanderfoot), 899 F.2d 598, 599 (7th Cir.), cert. granted, 111 S. Ct. 507 (1990) (No. 90-350).