A bankruptcy has very little effect on child support. If you paid child support before you filed bankruptcy, you are still going to have to pay it after you file. If you were behind on child support payments before you filed bankruptcy, you will still owe it if you filed Chapter 7. If you filed Chapter 13, it would be paid back in full through your plan.
While a bankruptcy may not get rid of a child support obligation, it does give you some options to help get a child support arrearage paid. A good bankruptcy attorney can explain how a bankruptcy filing could help you handle your child support obligation.
Domestic Support Obligations
Child support is defined as a “domestic support obligation” in bankruptcy. Generally, this means that the obligation
- Was created through a separation agreement or divorce
- Is owed to a spouse, former spouse, or child of the debtor or the child’s parent or legal guardian
- Is in the nature of alimony, maintenance or support of the spouse, former spouse or child
Domestic support obligations also include spousal support and can include the obligation to pay certain debts.
Child support is a priority debt in bankruptcy. Priority debts are given special status and are not dischargeable in bankruptcy, meaning you can’t get rid of them. Child support is given first priority and paid before other debts that you owe.
Child support is given such priority that even the protection of the automatic stay is limited. When a bankruptcy is filed, the automatic stay goes into effect immediately and prevents your creditors from trying to collect from you. However, child support is different.
The automatic stay does not prevent establishing or modifying a child support order, collection of child support from property that is not property of the bankruptcy estate (including wages you earn after you file a Chapter 7), or withholding income to pay ongoing child support obligations.
Child Support and Chapter 7
If you owe child support and file a Chapter 7 bankruptcy, you will still have to pay the ongoing child support. It can also still be deducted from your pay check.
If you owe back child support, and the Chapter 7 trustee has assets and is going to pay something to your creditors, the child support will get paid first. Either the person who is supposed to receive the child support, or the child support enforcement agency, will need to file a claim and tell the trustee how much is owed. When the trustee distributes money, the child support claim will get money first. If you owe back support, this will help you because you will get credit against the arrearage for what the trustee pays on the claim.
Any back support that is owed and not paid in a Chapter 7 will not be discharged. You will still owe that amount after you receive your discharge and will need to make arrangements to pay it. Even though a Chapter 7 will not discharge support that is owed, by getting rid of your other debts, it can make it easier for you to catch up and keep paying after your bankruptcy case is over. If you owe a large amount of back support, a Chapter 13 can be an option to help get it paid.
Child Support and Chapter 13
Since child support is a priority debt, it must be paid in full through a Chapter 13 plan. In a Chapter 13 case, you make payments to a trustee for 3 to 5 years and the trustee distributes the money to your creditors. A Chapter 13 can be a good way to catch up on back support in a payment plan that you can afford, as long as the amount that you are behind is manageable in a 5 year repayment plan. On-going child support will still have to be paid while you are in your Chapter 13 case. Your attorney will need to make sure the claim gets filed correctly to make sure the child support gets the money that you want them to get through your plan. You will not be able to receive a discharge without certifying that you are current on your child support payments since you filed bankruptcy. You should talk to an attorney knowledgeable about Chapter 13 cases to see if it is a good option for you.