How Will Bankruptcy Affect My Ex’s Child Support Obligations?
One of the most common questions I receive, whether it be from clients or people who know me, is; “Will bankruptcy affect me receiving child support after a divorce?”. More often than not, the question is phrased: “My ex says that he will just file bankruptcy and then he won’t have to pay me my child support. What do I do?” As a family law attorney with offices in Mobile and Daphne, I know how the laws affect my clients and bankruptcy is no different. My answer to this question is simple; Your ex-spouse cannot discharge or ignore, a child support debt by filing Chapter 7 or Chapter 13 bankruptcy.
What follows is a more thorough explanation of my simple, sentence answer.
Bankruptcy Law Protects the Child Support Obligation
Court ordered child support obligations receive special treatment in bankruptcy proceedings. A person under a child support order cannot discharge that debt by filing for bankruptcy. It is possible that payments on any accrued child support arrearages may be handled through a bankruptcy plan, but the obligation for current payments remains untouched.
Child Support Is Not Dischargeable in Bankruptcy
In developing the laws of Bankruptcy, Congress decided that certain types of debt (called priority debts) are too important get wiped out in bankruptcy. Child support debt is one of those “priority” debts that cannot be discharged through bankruptcy. This means that even if the bankruptcy case ends with a complete discharge, the individuals filing for the bankruptcy are still responsible for all child support payments.
If you were behind on your child support obligations prior to filing your case, you are still required to pay back all amounts that have come due. However, you can use Chapter 13 bankruptcy to reorganize your debts, which should allow you to catch up on your missed child support payments.
Child Support Has One of the Highest Priorities Among Debts
In addition to being non-dischargeable, priority debts receive special treatment in bankruptcy. In Chapter 7 bankruptcy, priority debts get paid before other debts if there are any proceeds to distribute to creditors. In fact, child support is paid even before other priority debts.
In Chapter 13 bankruptcy, all child support payments you were behind on prior to filing your case must be paid back in full through your repayment plan. Because a Chapter 13 plan cannot exceed five years, excessive child support arrearages can lead to a high monthly plan payment.
Furthermore, you must continue to make your ongoing child support payments during bankruptcy and make up any missed payments. Before you can receive a Chapter 13 discharge, you must certify to the court that you are current on all alimony and child support obligations at the time you complete your case.
If you have questions about how bankruptcy affects your child support and alimony obligations or payments call our office today and schedule a free consultation. Our attorneys are here to support you and advise you on all of your family law needs.