HERBERT A. ROSS
U.S. Bankruptcy Judge

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      After reviewing the numerous exhibits and a partial transcript, I have determined to rule for the defendant.

      Dennis and Deborah are well educated. Dennis has a law degree. Deborah has an undergraduate degree in English. Dennis was a partner in a Fairbanks law firm which he withdrew from or dissolved at the time of bankruptcy. His income fluctuated, but he made at the time $60,000 to $90,000 per year. Deborah had a job that paid her over $30,000 per year.

      In addition to these calculations, Judge Andrews found that Dennis had separate liabilities of $37,650.00 and Deborah had a lesser amount of separate liabilities.

      The $43,382.50 was payable by Dennis to Deborah at $1,000.00 per month from January 1, 1987 with interest at 10½%. Dennis was to assume the marital debts shown above and hold Deborah harmless against nonpayment.

      At the divorce proceedings Deborah expressed an interest in pursuing a dental career and had asked for support payments while she pursued this goal. The court did not grant support for this purpose.

      The basis of Judge Andrews granting a property and obligation division which was not 50/50 is found in her oral findings. I will quote from the most pertinent section at length since it is the main source of my findings, inferences, and intuition about what the judge intended by her divorce findings and decree:

    1 ABR 476  I've looked at the numbers, and I've considered the Merrill factors and -- I think it's going to be my decision (indiscernible) -- there's $121,000.00 in assets, $58,735.00 in debt, and in that we have not included $30,000.00 of legal fees which -- those get included and excluded all over the place, there's no real best way of dealing with those. There aren't any significant pointers under the Merrill factors, except for the -- my concern is over the educational business. It would, to me, dictate other than a 50/50 split, and I would agree with defense counsel, the object of providing spousal support is not to put one spouse in an equal earning position as the other. On the other hand it certainly seems to me that in some fashion the wife should be given some credit somewhere along the way for the fact that out of this marriage Dennis has gotten seven years of schooling and she's gotten four. I don't think he's required to support her for a dental degree, I don't think he's required to support her for the length of time it would take to get one. But I think some adjustment in that 50/50 factor should be made, and I don't feel comfortable with the 60/40 split, because I don't see this is a wife who gave up her career to put her husband through dental -- or through law school, I mean they both put themselves through school, and both got 'em into debt, and -- well, she should be given some credit, I guess, for that -- for the early years of the marriage when she took care of the kids and he went to school and put him in a position to be going to law school instead of undergraduate school 15 years later. Although she didn't put him through undergraduate school, it's pretty certain he did -- he put himself but she then -- her taking care of the kids enabled him to do that, so somewhere there should be some accommodation for that.

      And so what I've done is I've kind of looked at the 60 -- the 50/50 split will mean the wife will own assets of $60,500. The husband in this case has agreed to, and it's reasonable under the circumstanced, to assume all the debt. And his wife's debt that he will be assuming is $29,867.00, which leaves $30,633 as assets which the wife is entitled to, and I would reduce that by $4,000.00 giving her retirement, leaving Mr. McKelvie with the law practice and the Pizza Pub, which then leaves us with the figure of $26,633.00 which is -- the only way I can figure how to do that is some     1 ABR 477  sort of a cash buy-out situation cured by the note and what security Mr. Mckelvie can offer, payable over time, and the way that I would consider equalizing or accommodating what I consider to be no a major inequity in the marriage but something that should be given consideration, is to have him pay $10,000.00 of the wife's legal fees, which I calculate to be about 30% -- a 30% addition to his debt, which I think is substantial, which will leave the wife in a position out of this marriage, of -- free of about $40,000.00 worth of debt, the only think she has is her student loan and the car payment and some of the balance on attorneys fees. Mr. McKelvie is in a position to generate the income to pay the debts -- or in a better position. And that actually ends up looking like, if you ran the numbers, something like a 55/45 split, it's real close to that. So that's -- that will be the decision of the court.

      The balance of $26,633, is -- it's a judgment I suppose that if it's owed accrues interest at the rate of 10.5 percent. It is to be secured by -- the only assets he has to provide security is he's got the -- well, I suppose the real property that he has an interest in is the safest security, although I'm not certain what the equity is, I'm not certain really how much security that provides, but -- and we've got to figure out a payment schedule, it's not going to be cashed out immediately unless Mr. McKelvie has some way of obtaining credit, but if I were a banker I wouldn't give him any, so -- and I would say -- at first glance I don't know how he can -- how he can carry $762.00 a month child support plush servicing these debts, plus paying off the $26,000.00 debt, plus another $10,000.00 debt to the law firm of Reese, Rice and Volland, and continue to make substantial payments on the $26,000.00, so I would say the minimum payment of $1,000.00 a month would just about -- I mean it's not a lot to the wife but it's substantial and probably in reality more than Mr. McKelvie can afford if he services the debt. And I would say those payments should begin January 1st.

From Exhibit Q (Docket No. 12) to Defendant's Motion for Summary Judgment, an excerpt of a transcript of the oral findings of the Hon. Elaine Andrews on November 19, 1986, at pages 10-13.

The court finds that an approximate 55/45 division of the marital assets is equitable with the larger share to Deborah. The court reached this conclusion upon consideration of the Merrill criteria and notes particularly that Dennis received seven years of higher education during the course of the marriage as opposed to the four years that Deborah received. To effect this division, it is appropriate that the actual marital assets be divided equally as specified below, except the law office building. Dennis should be required to pay $16,000. of Deborah's costs and attorney's fees • • • .

Exhibit R to Defendant's Motion for Summary Judgment, Docket No. 11.

      Dennis filed a chapter 7 bankruptcy on February 11, 1987. Deborah said that, at a chance meeting with Dennis in July, 1986, before the divorce was final, Dennis threatened that if she tried to get payments from him he would file bankruptcy to escape the debt. Affidavit of Deborah at Docket No. 17. Dennis states that he filed because of crushing debt, overvalued assets, and inability to see light at the end of the tunnel. He states that his law partnership had dissolved due to the preference of his former partner rather than himself.

      Deborah filed this adversary complaint to determine dischargeability under 11 U.S.C. section 523(a)(5) and 11 U.S.C. section 727(a)(2),(3),(4), and (5). Dennis filed a motion for summary judgment on all counts, and Deborah filed a cross-motion     1 ABR 479  for summary judgment. The parties have, however, asked me to make a dispositive ruling based upon the pleadings in the cross summary judgment motions.

      Deborah claims that the divorce decree's award of $43,382.50, which includes $16,000.00 of attorney fees, is nondischargeable under 11 U.S.C. § 523(a)(5). That section provides in relevant part:

(a) A discharge under [this act] does not discharge an individual debtor from any debt --

• • •

      (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree, or other order of a court of record or property settlement agreement, but not to the extent that --

• • •

           (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance or support • • • .

      Legislative history clearly indicates that "[w]hat constitutes alimony, maintenance, or support, will be determined under the bankruptcy laws, not state law." H.R.Rep. No. 595, 95th Cong., 2d Sess. 364, reprinted in 1978 U.S.Code Cong. & Ad. News 5963, 6320; S.Rep. 989, 95th Cong., 2d Sess. 79, reprinted in 1978 U.S.Code Cong. & Ad. News 5787, 5865. The legislative history further states:

This provision will . . . make nondischargeable any debts resulting from an agreement by the debtor to hold the debtor's spouse harmless on joint debts, to the extent that the agreement is in payment of alimony, maintenance, or support of the spouse, as determined under bankruptcy law considerations that     1 ABR 480  are similar to considerations of whether a particular agreement to pay money to a spouse is actually alimony or a property settlement.

H.R.Rep. No. 595, at 364, reprinted in 1978 U.S.Code Cong. & Ad. News at 6320; see also S.Rep. No. 989, at 79, reprinted in 1978 U.S.Code Cong. & Ad. News at 5865.

      Deborah points out that the law necessary to resolve the § 523(a)(5) aspect of this case is found in Shaver v. Shaver, 734 F.2d 1314 (9th Cir. 1984). That case holds that the determination of whether a settlement or award is in the nature of "support" or is, instead a "property settlement," is a federal bankruptcy law issue regardless of how the state defines the award. In Shaver, Indiana law did not provide for alimony under the facts of that case. Nonetheless, the bankruptcy court found that a payment called in the Indiana decree a "property settlement" was really support under § 523(a)(5) and nondischargeable.

      A bankruptcy court should look "beyond the language of the decree to the intent of the parties and the substance of the obligation" to determine if an obligation is support. Shaver at 1316. A court should look at several factors to determine whether a property settlement is intended for support. The factors to be considered in determining whether the circumstances indicate that support was intended include:

(a)	the presence of minor children,
(b)	an imbalance in the relative income (and the economic circumstances),
1 ABR 481
(c)	whether the obligation terminates on the death or is affected by a change in circumstances),
(d)	the nature and duration of the obligation (support payments tend to mirror the recipient spouse's need for support. Support payments are generally made directly to the recipient spouse and are paid in installments over a substantial period of time),

Shaver at 1316-17.

      This is not to say that state law has no effect. Congress could not have meant that the bankruptcy courts were to ignore the well-developed principles of state law. In re Yeates, 807 F.2d 874, 877-78 (10th Cir. 1986). State law provides guidance, but bankruptcy law controls the determination of whether a payment is for support or reflects a property settlement. Since state law only provides guidance, a debt could be in the nature of support under § 523(a)(5) even though it would not legally qualify as alimony or support under state law. Id., 807 F.2d at 878; Stout v. Prussel, 691 F.2d 859, 860-61 (9th Cir. 1982).

      The major asset was his practice, and there was no way to readily liquidate this. Judge Andrews concluded that the only way for Deborah to realize on her share was to have Dennis pay a large share of the marital debts. She expressed doubt if he could carry the load. Deborah argues that, in the context of this case, the installment obligation should be deemed support. Otherwise, she will be saddled with about $30,000.00 in marital bills which she cannot afford.

      In this case, Deborah and Dennis were both well educated. Both had good jobs. Only one of their children was still a minor. Judge Andrews specifically stated it was not the concept of her decree that money be made available so Deborah could pursue further education. The tenor of the decree and remarks of Judge Andrews is that she was splitting, relatively equally, the assets and liabilities of the marriage as best she could, given the cash flow problems of the parties. She stated that the $1,000 per month payment schedule was based upon what Dennis could realistically pay, not for the continuing support needs of Deborah.

      Similarly, in this case, it is clear that Judge Andrews was speaking principally about dividing marital property. Support was not the issue in structuring the installment obligation.

      I hold that there is no § 727 case.

      The court will enter a judgment on April 29, 1991, barring a request for reconsideration by the parties by April 25, 1991.