- Case Type:
- Case Status:
- 18-3415 (8th Circuit, Feb 07,2020) Published
- Portions of the ex-spouse's exempt retirement accounts (a 401(k) and an IRA) are not exempt retirement funds in a debtor's Chapter 7 bankruptcy case commenced after the retirement funds are awarded to the debtor in a state-court dissolution of his marriage. Among other reasons, the debtor's interest in the ex-wife's IRA fails to meet the ordinary requirements of retirement funds. Further, the debtor was obligated to pay these funds to his lien creditor before any right to claim these funds as *his* retirement funds had vested.
- Procedural context:
- A state court awarded Lerbakken, the debtor, part of his ex-wife’s Individual Retirement Account and her 401(k) in a dissolution decree. Lerbakken filed for bankruptcy, claiming that his interests in the IRA and 401(k) are exempt as “retirement funds.” The bankruptcy court disallowed the debtor's claimed exemption, ruling that Lerbakken’s interests in the IRA and 401(k) funds are not retirement funds. The debtor appealed, and the BAP affirmed. The debtor again appealed.
- The appellant, Sieloff & Associates, represented Brian A. Lerbakken, the debtor, in his domestic dissolution case in Minnesota. As part of the dissolution, the state court awarded Lerbakken part of his ex-wife's IRA and all of her 401(k). The court ordered Lerbakken to file a Qualified Domestic Relations Order, and Lerbakken refused, leaving him only a domestic relations order (a QDRO). apparently didn't pay his attorneys. The state court ordered an attorney's lien in favor of the attorney's against Lerbakken and his interests in the ex-wife's IRA and 401(k). Six months later Lerbakken filed a Chapter 7 bankruptcy petition and claimed that this interests in his ex-wife's IRA and 401(k) were exempt as "retirement funds."
- COLLOTON, WOLLMAN, and BENTON
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