Child Support Law
Filing for bankruptcy can help people overwhelmed by debt get back on their feet. But how might a bankruptcy filing affect your child support payments after a divorce?
You cannot discharge court-ordered child support payments in a bankruptcy filing. You also are not allowed to include back child support payments, also known as child support arrears, in your total debt in your bankruptcy filing.
Both state and federal courts recognize child support payments as a priority debt due to the importance of meeting the child's best interests. Legally, parents are required to provide financially for their child, and a bankruptcy cannot change that.
You also may want to be aware of the following:
You may want to consider hiring an experienced personal bankruptcy attorney to represent you to ensure all legal procedures affecting child support are appropriately followed.
While filing for Chapter 7 or Chapter 13 bankruptcy puts an automatic stay in place, giving you a break from collection companies, child support collection actions against you can continue. Likewise, legal actions seeking to establish a child support order also will be allowed to continue.
Which type of bankruptcy you file for may make a difference in how the court determines your child support obligations.
Income earned after your bankruptcy filing may be used to determine your financial obligation for child support. The courts also may order you to use that income on back child support payments you owe to the other parent.
In a Chapter 7 bankruptcy filing, income earned after filing is not considered part of the bankruptcy estate.
A chapter 13 filing includes earned income in the bankruptcy estate. That means if you earn more while you are in the middle of your debt repayment plan, you may have to pay back more of your debts.
Any party seeking repayment must receive court approval. The courts are more likely than not to approve a request for recovery of support if the parent who filed is already behind on payments for an existing child support order.
A parent may request a child support modification to the original order if they experience a significant and long-term change in income. Filing for bankruptcy does not cancel out parental responsibility to make timely child support payments. Still, a judge may modify the original order if, for example, you received a pay cut at work.
The modification would only apply to payments going forward, while upholding your legal responsibility to repay the other parent the full amount owed to them in missed child support payments.
As always, speaking with an experienced child support attorney is likely your best option before you stop making payments on your own.