IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Norfolk Division

KENT DAVID BURSTEIN, 

 Debtor/Appellant, 

 v. 

YVETTE NONTE 

 Creditor/Appellee. 

Case No. 2:22-cv-267

MEMORANDUM OPINION & ORDER

Before the Court is Debtor/Appellant Kent David Burstein’s appeal of the 

United States Bankruptcy Court for the Eastern District of Virginia’s order 

granting summary judgment on the dischargeability of his debt to Creditor/Appellee 

Yvette Nonte. ECF No. 1. The Court has fully considered the arguments set forth in 

the parties’ briefs and has determined that it is not necessary to hold oral 

argument. Fed R. Civ. P. 78; E.D. Va. Civ. R. 7(J). For the reasons stated below, the 

Court AFFIRMS the bankruptcy court’s judgment. 

I. BACKGROUND 

Creditor Yvette Nonte and Debtor Kent David Burstein are former spouses. 

On or about April 27, 2011, they entered into a property settlement agreement

(“separation agreement”) that was subsequently incorporated but not merged into 

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their divorce. ECF No. 22-1 at 20.1 Section 6 of the separation agreement, in 

relevant part, required the debtor to pay the creditor a portion of any cash 

distributions he received from his companies and to provide her with access to 

related accounting documentation. Id. at 22–25. 

In March 2014, the creditor filed a lawsuit in Maryland state court seeking 

damages and declaratory relief for breach of fiduciary duty and breach of contract. 

ECF No. 22-1 at 33–39. The complaint alleged that the debtor breached Section 6 of 

the separation agreement. Id. The parties entered a May 2015 settlement 

agreement (“settlement agreement”), in which the debtor agreed to pay the creditor 

a sum in exchange for dismissal of the lawsuit with prejudice. Id. at 40–43. In 

addition, the parties agreed to “mutually release each other from any claims they 

have arising out of the events addressed by the pending litigation and under Section 

6.A of the [separation agreement] regarding marital property.” Id. at 40. 

On June 27, 2019, the debtor filed a voluntary petition under Chapter 7 of 

the Bankruptcy Code in the United States Bankruptcy Court for the Eastern 

District of Virginia. ECF 22-1 at 209. The creditor filed an adversary complaint 

against the debtor in May 2020, alleging that the debt to her is nondischargeable 

pursuant to 11 U.S.C § 523(a)(15). Id. In March 2022, the Bankruptcy Court, having 1 Both parties submitted appendices with their respective briefs. All citations herein 

will refer to the debtor/appellant’s appendix. To avoid any confusion, the page 

numbers the Court cites will refer to the page number in the PDF, and not to the 

debtor/appellants numbering. 

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determined that the debt at issue was nondischargeable, entered summary 

judgment for the creditor. Id. at 223. 

II. LEGAL STANDARD 

When reviewing a decision of a bankruptcy court, a district court applies the 

same standard of review applied in federal courts of appeals. Hilgartner v. Yagi, 643 

B.R. 107, 116 (E.D. Va. 2022). Therefore, this Court will review questions of fact for 

clear error and questions of law de novo. Stancill v. Harford Sands (In re Harford 

Sands), 372 F.3d 637, 639 (4th Cir. 2004). 

Section 523 of the Bankruptcy Code governs exceptions to dischargeability. 

For a debt to be deemed nondischargeable under § 523(a)(15), the debt must (1) be 

to a spouse, former spouse, or child of the debtor, (2) not be a domestic support 

obligation, and (3) have been incurred during a divorce or separation or “in 

connection with a separation agreement, divorce decree, or other order of a court of 

record.” 11 U.S.C. § 523(a)(15); see Monassebian v. Monassebian (In re 

Monassebian), 643 B.R. 388, 393 (Bankr. E.D.N.Y. 2022). 

III. ANALYSIS 

A. “In Connection With” Means a Logical or Causal Relationship. 

The parties agree that the debt at issue is owed to a former spouse and does 

not qualify as a domestic support obligation. Thus, the sole question before the 

Court is whether the debt at issue was “incurred . . . in connection with a separation 

agreement.” 11 U.S.C. § 523(a)(15). The Bankruptcy Code does not define “in 

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connection with” as it relates to § 523(a)(15), and there is no binding case law 

directly addressing the meaning of this statutory language. 

When interpreting a statutory provision, the Court’s analysis must begin 

“with the language of the statute itself.” Republic of Sudan v. Harrison, 139 S.Ct. 

1048, 1055–56 (2019); see also Dwoskin v. Bank of America N.A, 888 F.3d 117, 119 

(4th Cir. 2018) (“In interpreting [a] statute . . . we look first to its language, giving 

the words their ordinary meaning.”) (quotation marks omitted). The most natural 

reading of “in connection with” in this statutory context would require the debt to be 

logically or causally related to a separation agreement, divorce decree, or other 

order of a court of record. See Connection, Webster’s Collegiate Dictionary (11th ed. 

2012) (defining connection as a “causal or logical relation or sequence”); see also 

Connection, The American Heritage Dictionary of the English Language (5th ed. 

2011) (defining connection as “[o]ne that connects, a link; [a]n association or 

relationship; [t]he logical or intelligible ordering of words; [r]eference or relation to 

something else”). 

 This reading is also consistent with § 523(a)(15)’s legislative and drafting 

history. “The principal purpose of the Bankruptcy Code is to grant a fresh start to 

the honest but unfortunate debtor.” Marrama v. Citizens Bank, 549 U.S. 365, 367 

(2007) (quotation marks omitted). This policy goal leads courts to generally read 

exceptions to discharge narrowly, in favor of the debtor. See, e.g., Foley & Lardner v. 

Biondo (In re Biondo), 180 F.3d 126, 130 (4th Cir. 1999); Cazenovia Coll. v. 

Renshaw (In re Renshaw), 222 F.3d. 82, 86 (2d Cir. 2000). However, in line with its 

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legislative history, courts have construed § 523(a)(15) liberally to restrict the 

circumstances under which a debt can be discharged. See In re Monassebian, 643 

B.R. at 394; Hanson v. Brown (In re Brown), 541 B.R. 906, 910–11, (Bankr. M.D. 

Fla. 2015) (“Both the legislative history of the Bankruptcy Code and case law 

referring to this section illustrate that § 523(a)(15) should be construed broadly and 

liberally to encourage payment of familial obligations rather than to give a debtor a 

fresh start.”). In other words, the legislative history indicates that Congress added 

§ 523(a)(15) to broaden the scope of marital debts that are nondischargeable to 

ensure that a debtor “not use the protection of a bankruptcy filing in order to avoid 

legitimate marital and child support obligations.” H.R. Rep. No. 103-825, at 54. 

 Prior to the enactment of the Bankruptcy Abuse Prevention and Consumer 

Protection Act (“BAPCPA”) in 2005, § 523(a)(15) provided a debtor with two 

statutory defenses. The debtor could argue that discharge was appropriate either 

based on their inability to pay, or that discharge would result in a benefit to the 

debtor that would outweigh the cost to the former spouse. Taylor v. Taylor (In Re 

Taylor), 478 B.R. 419, 428 (B.A.P 10th Cir. 2012). BAPCPA eliminated both 

defenses and made debts falling within the scope of § 523(a)(15) nondischargeable 

without qualification. Id. 

Several courts have acknowledged that these changes significantly expanded 

the scope of nondischargeable debts under § 523(a)(15) and reflect Congress’s goal of 

ensuring the payment of familial obligations. See Adam v. Dobin (In re Adam), No. 

CC-14-1416, 2015 WL 1530086, at *4 (B.A.P 9th Cir. Apr. 6, 2015) (“The evolution of 

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§ 523(a)(15) demonstrates Congress’s intent to spread as large a net, and to include 

as many marriage dissolution-related claims as possible, within this exception to 

discharge.”); In re Monassebian, 643 B.R. at 394 (stating that the elimination of the 

balancing test reflects “Congress’s strong policy in favor of protecting ex-spouses 

and children and the intent to cover any matrimonial debts that should not be 

justifiably discharged”) (quotation marks omitted). 

As the bankruptcy court noted, “courts around the country have recognized 

that § 523(a)(15) should be broadly and liberally construed to encourage payment of 

familial obligations rather than to give a debtor a fresh financial start.”2 Thus, the 

plain meaning of the statutory language, its drafting history, and its legislative 

2 ECF No. 22-1 at 215 (internal citations omitted); see also Gamble v. Gamble (In re 

Gamble), 143 F.3d. 223, 225 (5th Cir. 1998) (stating that courts are correct to give 

§ 523(a)(15) “the full reach implicated by its plain language”); Crosswhite v. 

Crosswhite (In re Crosswhite), 148 F.3d 879, 882 (7th Cir. 1998) (stating that the 

legislative history of § 523(a)(15) reflects the same policy interest in protecting 

former spouses as § 523(a)(5)); In re Taylor, 478 B.R. at 428 n. 26 (“Because 

Congress enacted § 523(a)(15) to broaden the types of marital debts that are 

nondischargeable beyond those described in § 523(a)(5), by implication a 

§ 523(a)(15) exception from discharge would also be construed more liberally than 

other § 523 exceptions.”); In re Brown, 541 B.R. 906, 910–11, (Bankr. M.D. Florida 

2015) (“Both the legislative history of the Bankruptcy Code and case law referring 

to this section illustrate that § 523(a)(15) should be construed broadly and liberally 

to encourage payment of familial obligations rather than to give a debtor a fresh 

start.”); In re Adam, 2015 WL 1530086, at *5 (“Because Congress enacted 

§ 523(a)(15) to broaden the types of marital debts that are nondischargeable . . . by 

implication a § 523(a)(15) exception would also be construed more liberally than 

other § 523 exceptions.”) (quotation marks omitted); see also Wetmore v. Markoe, 196 U.S. 68, 77 (1904) (“[B]ankruptcy law should receive such an interpretation as 

will effectuate its beneficent purposes, and not make it an instrument to deprive 

dependent [spouse] and children of the support and maintenance due them from the 

[debtor], which it has ever been the purpose of the law to enforce.”). 

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history support reading “in connection with” liberally to mean a logical or causal 

relationship with a separation agreement. 

B. The Debt at Issue is Causally Connected to the Separation 

Agreement.

Now, the Court must determine whether the debt at issue is logically or 

causally connected to the separation agreement. The debtor raises two arguments 

that the debt at issue is not “in connection with” the separation agreement. First, he 

argues that the combined effect of each agreement’s release clause is to change the 

nature of the debt. ECF No. 18 at 18. Second, the debtor claims that the settlement 

agreement constitutes a novation and is therefore separate and distinct from the 

separation agreement. Id. at 33. The Court finds that the separation agreement is a

but-for cause of the debt. Neither of the debtor’s arguments to the contrary change

the nature of the underlying debt. 

i. The separation agreement is a but-for cause of the 

settlement agreement. 

There is a direct causal link between the debt at issue and the separation 

agreement. It is undisputed that the creditor brought a lawsuit against the debtor 

to enforce the terms of the separation agreement. ECF No. 22-1 at 30–36. Further, 

it is undisputed that the creditor’s enforcement lawsuit was settled, and those 

terms are embodied in the settlement agreement. Id. at 40–43. Without the 

separation agreement there would have been no lawsuit to settle. Thus, the

separation agreement is a but-for cause of the settlement agreement. 

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The connection between the two agreements is evidenced in the language of 

the settlement agreement. Its opening paragraph states that the settlement 

agreement resolves “outstanding issues arising out of [the separation agreement] 

. . . entered into in connection with [the creditor and debtor’s] divorce.” ECF No. 22-

1 at 40. Paragraph 21 states that the parties understand that the debt under it is 

non-taxable “as per Section 6.A of the [separation agreement] regarding marital 

property.” Id. at 42. Paragraph 30 states that “to the extent that they are not 

inconsistent with this [settlement agreement], the terms of the [separation 

agreement] remain in effect.” Id. at 43.

As detailed earlier, § 523(a)(15)’s language is intentionally broad, and it is 

broad enough to cover this situation, making the debt non-dischargeable. This 

result is consistent with the findings of several courts that have dealt with 

analogous scenarios. See, e.g., Beale v. Kurtz (In re Beale), 381 B.R. 727, 732 (S.D. 

Ind. 2008) (finding that the post-divorce agreement did not change the fundamental 

nature of the debt and equating it to a “refinancing of an old loan”); In re 

Monassebian, 643 B.R. at 396 (finding that “[t]he debt did not automatically become 

dischargeable simply because it is one step removed from [the separation 

agreement]”); Kim v. Raines (In re Raines), No. 3:19bk30420, 2021 WL 262113, at 

*3 (Bankr. S.D. W. Va. Jan. 19, 2021) (finding the debt nondischargeable because 

the “decretal judgment directly stem[med]” from the debtor’s noncompliance with 

the parties’ divorce decree). While the debt at issue is one step removed from the 

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separation agreement, it is nevertheless evident that the separation agreement

remains a but-for cause of the debt. 

ii. Neither release clause breaks the connection. 

The debtor asserts that the combined effect of each agreement’s release 

clause is to change the nature of the debt. The debtor points to Paragraph 7 of the 

settlement agreement, which states that the parties “release each other from any 

claims” arising under Section 6 of the separation agreement, to argue that the 

connection between the separation agreement and the debt is “extinguished.” ECF 

Nos. 22-1 at 40 and 18 at 18. Additionally, because the creditor agreed to release 

any claim of marital obligation in the separation agreement, the debtor argues that 

none of the debt at issue can be characterized as such. ECF No. 18 at 18. 

This argument is beside the point. The Court’s task is to determine whether 

the debt at issue was incurred “in connection with” the separation agreement. The 

fact that the creditor agreed not to bring claims under the separation agreement, 

and instead agreed to bring them under the settlement agreement, does not change 

the fact that the separation agreement is a but-for cause of the debt. 

The Court also notes that the debtor makes specific arguments about the 

effects of release under Maryland state law. However, the question of 

dischargeability is squarely a question of federal law. Grogan v. Garner, 498 U.S. 

279, 284 (1991) (“Since 1970 . . . the issue of nondischargeability has been a matter 

of federal law governed by the terms of the Bankruptcy Code.”). If the question 

before the Court were whether the creditor released her claims under the 

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separation agreement, then the Maryland law that the debtor references would be 

relevant. But that is not the question the Court must answer. The task here is 

straight-forward—determine whether the debt at issue is “in connection with a 

separation agreement.” 11 U.S.C § 523(a)(15). Based on the record before it, this 

Court agrees with the bankruptcy’s court’s well-reasoned analysis of that central 

question. 

iii. Whether the settlement agreement constitutes a novation 

does not change the nature of the underlying debt. 

Next, the debtor argues that the settlement agreement constitutes a 

novation, which makes it separate and distinct from the separation agreement. ECF 

No. 18 at 33–39. Like his argument regarding the effect of the release clauses, this 

argument is beside the point. Even assuming that the settlement agreement 

constitutes a novation, such a conclusion does not change the nature of the 

underlying debt. 

The Supreme Court’s decision in Archer v. Warner, 538 U.S. 314 (2003), is 

instructive on this point. Archer held that reducing a fraud claim to settlement does 

not change the fact that the money was obtained by fraud, and thus, 

nondischargeable. Id. at 319. In doing so, the Supreme Court reiterated its 

instruction that lower courts look “into the true nature of the debt” when making 

dischargeability decisions. Id. at 320–21 (quoting Brown v. Felsen, 442 U.S. 127, 

138 (1979)). 

The debtor argues that Archer is not applicable here because it did not create 

a bright-line rule that debt based on fraud cannot be settled or released. ECF No. 24 

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at 3–7. The Court agrees that Archer did not create a bright-line rule. However,

Archer’s general principle that the underlying nature of a debt does not change 

based on the agreement in which it is embodied is applicable and guides the Court 

in this case. See Hilgartner, 643 B.R. at 117 (viewing the issue of whether 

settlement of a lawsuit changes the nature of the debt from a tort claim to a 

contract claim such that it is nondischargeable under § 523(a)(6) as “squarely 

resolved by the [Supreme Court] in Archer”). Archer tells us that the Court is not 

precluded from looking at the underlying separation agreement that created the 

obligations that gave rise to the settlement agreement. Put differently, Archer 

instructs the Court that “in the dischargeability context . . . a tiger does not change 

its stripes.” Remy v. Barton (In re Barton), 321 B.R. 869, 874 (Bankr. N.D. Ohio 

2004) (analyzing the Court’s holding in Archer). In this case, the debt at issue did 

not “change its stripes” and become dischargeable simply because it is no longer 

embodied in the separation agreement. 

C. The Debtor/Appellant’s Constitutional and Policy Arguments 

Also Fail. 

In addition to his arguments regarding the causal connection, the debtor 

raises both a constitutional and a policy-based argument to the bankruptcy court’s 

interpretation of “in connection with.”3 For the reasons outlined below, the Court 

finds these arguments unpersuasive. 

3 The parties dispute whether the debtor properly preserved these arguments. 

Issues must be raised in lower courts to be preserved “as potential grounds of 

decision in higher courts.” Wards Corner Beauty Acad. v. Nat. Accrediting Comm’n 

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First, the debtor argues that the bankruptcy court erred as a matter of law 

because its application of § 523(a)(15) prohibits and preempts the creditor’s right to 

contract. ECF No. 18 at 40–44. The debtor does not cite a specific Constitutional 

provision to support his assertion. He cites to two Lochner-era Supreme Court 

cases—Truax v. Corrigan, 257 U.S. 312 (1921) and Chas. Wolff Packing Co. v. Court 

of Indus. Relations, 262 U.S. 522 (1923)—both of which were substantive due 

process cases. ECF No. 18 at 42. To the extent that the debtor is relying on 

substantive due process for his constitutional right-to-contract claim, more recent 

Supreme Court cases have largely foreclosed that argument. See West Coast Hotel 

Co. v. Parrish, 300 U.S. 379, 392 (1937) (overruling Adkins v. Children’s Hospital, 261 U.S. 525 (1923) and stating that “the freedom of contract is a qualified, and not 

an absolute right . . . [t]he guaranty of liberty does not withdraw from legislative 

supervision the wide department of activity which consist of the making of 

contracts”) (quotation marks omitted). 

of Career Arts & Sciences, 922 F.3d. 568, 578 (4th Cir. 2019) (quotation marks 

omitted). To preserve an issue for appeal, a party “must press and not merely 

intimate the arguments during the proceedings before the [lower court].” Id. In his 

memorandum in support of summary judgment, the debtor made both arguments. 

ECF No. 22-1 at 147–48 (arguing that to accept the creditor’s characterization 

would “destroy the ability of debtors to negotiate with finality with former spouses” 

and “suggests a policy that rejects [the creditor]’s ability to freely negotiate and 

release any divorce related debt”). In doing so, the debtor preserved these 

arguments for appeal. 

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Next, the debtor argues that the bankruptcy court’s decision, as a matter of 

policy, is a “paternalistic”4 application of § 523(a)(15) because “it suggests that all 

debtors will never be able to negotiate with finality with a former spouse” and 

“rejects [the creditor]’s ability to freely negotiate and release any divorce related 

debt.” ECF Nos. 18 at 40, 44. The Court finds the merits of the debtor’s argument 

unavailing for at least three reasons. 

The debtor asserts that affirming the bankruptcy court’s order would 

“potentially set[] precedent that former spouses could never, under any 

circumstances, freely, negotiate for dischargeability.” ECF No. 24 at 8. This 

argument mischaracterizes the bankruptcy court’s rather narrow holding and 

ignores the statutory language at issue. First, the bankruptcy court’s holding (and 

this Court’s affirmance of that holding) does not create a bright-line, categorical rule 

that there are no circumstances under which former spouses could negotiate for 

dischargeability. The bankruptcy court’s judgment, and this Court’s decision 

affirming it, simply stand for the proposition that an agreement whose opening 

4 This is but one example of the pervasive disrespectful and inflammatory language 

and tone debtor’s counsel uses when referring to the bankruptcy court and its 

judgment. The Court reminds debtor’s counsel that, as members of the legal 

profession practicing before this Court, they are expected to comport themselves 

with courtesy and respect, even as they provide their clients with zealous advocacy 

(as they have here) and even when they disagree vehemently with a court’s decision. 

Va. Bar Ass’n, Principles of Professionalism for Virginia Lawyers, https://perma.cc/49SS-35TE (last visited August 17, 2023) (“In my conduct toward 

courts and other institutions with which I deal, I should: treat all judges with 

respect and courtesy . . . avoid any conduct that offends the dignity or decorum of 

any courts or other institutes such as . . . unbecoming language directed at the 

courts or any other participants.”).

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paragraph states that it is resolving “outstanding issues arising out of [the 

separation agreement] . . . entered into in connection with [the creditor and 

debtor’s] divorce” is the kind of case to which § 523(a)(15)’s dischargeability 

exception applies. ECF No. 22-1 at 40.

Second, this argument ignores the rest of the statutory language. Section 

523(a)(15) applies only to debts incurred “in the course of a divorce or separation” or 

“in connection with a divorce decree, separation agreement, or other order of a court 

of record.” 11 U.S.C § 523(a)(15). It is not applicable in any other case. For example, 

it is not applicable in the context of former spouses who are also in a 

landlord/tenant relationship or who are business partners. See Tracy v. Tracy (In re 

Tracy), No. 06-40044, 2007 WL 420252, at *3 (Bankr. D. Idaho Feb. 2, 2007) (finding 

the debt dischargeable because it arose from the parties’ new landlord/tenant 

relationship and “subsequent dealings . . . unrelated to the dissolution of the 

parties’ marriage”); see also Gilman v. Golio (In re Golio), 393 B.R. 56, 62 (Bankr. 

E.D.N.Y 2008) (holding that the debt is nondischargeable because “there was no 

landlord-tenant or other type of relationship between [the parties] that would 

render the [debt] outside the scope of the [d]ivorce [j]udgment”). In either context, 

the existence of a non-marital relationship may break the link between a debt and a 

separation agreement. 

Further, it is the debtor’s interpretation of the statutory language that leads 

to results that directly contradict Congress’s clearly stated intent. The debtor’s 

proposed interpretation creates an incentive to breach separation agreements so 

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that debts can be discharged in bankruptcy. Essentially, if an individual wants to be 

able to discharge their divorce debt, all they would need to do is breach the 

separation agreement and then settle the subsequent enforcement lawsuit. As 

detailed above, Congress’s intent in including this exception was to protect former 

spouses and to ensure that debtors do not use the bankruptcy process to shirk their 

marital obligations. See H.R. Rep. No. 103-825, at 54. The debtor’s arguments—at 

nearly every turn—run counter to that stated goal. 

IV. CONCLUSION

For the reasons explained above, it is hereby ORDERED that the judgment 

of the Bankruptcy Court as to the dischargeability of the Creditor/Appellee’s debt 

incurred in the May 2015 settlement agreement is AFFIRMED. The Clerk is DIRECTED to send a copy of this Memorandum Opinion and 

Order to all counsel of record and to close this civil action. 

IT IS SO ORDERED.

/s/ 

Jamar K. Walker

United States District Judge

Norfolk, Virginia

August 23, 2023

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