Although a bankruptcy filing will stop most creditor actions, your Chapter 7 or Chapter 13 filing will not stop certain types of creditors.  Child support creditors fall into this specially protected class. Child Support, alimony and other debts arising from a divorce or domestic relations case are generally not dischargeable in bankruptcy.   Years ago, the Bankruptcy Code drew a distinction between support and property division and used a balancing test to determine whether a property division could be discharged.

This has changed.  Section 523 of the Bankruptcy Code contains the following two provisions that address child support an alimony – Bankruptcy Code Sections 523(a)(5) and 523(a)(15).  A Chapter 7 or Chapter 13 discharge does not include debts:

  • (5) for a domestic support obligation;
  • (15) to a spouse, former spouse, or child of the debtor and not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a governmental unit;

In sum, therefore, your bankruptcy filing will not have much effect on any child support collection or litigation

  • past due child support obligations cannot be discharged in a Chapter 7 or Chapter 13
  • a Chapter 13 plan cannot be confirmed if you are not current with your child support or if you do not have an arrangement in place to address any arrearage
  • the filing of  a bankruptcy does not result in the imposition of the automatic stay against child support creditors who are trying to collect past due child support debt
  • the filing of a bankruptcy does not create an automatic stay that would stop a state court proceeding to establish or modify child support

In my experience, there are only two instances where bankruptcy has much impact at all on child support:

  • first, some state court judges may not be familiar with the Bankruptcy Code or the limitations on the automatic stay.   Sometimes, when a state court judge learns that a Chapter 7 or Chapter 13 has been filed, he will ask the plaintiff (the party seeking to establish or modify child support) to get an order from the Bankruptcy Court lifting the automatic stay.  Further, domestic relations litigation sometimes exceeds the scope of Section 362(b) of the Bankruptcy Code.  In such a situation the Superior Court judge may want guidance from the Bankruptcy Court regarding exactly what matters are stayed and what matters are not.
  • second, a custodial parent creditor can agree to accept past due child support payments in a Chapter 13 plan to cure an arrearage.   The custodial parent may reason that her likelihood of receiving payments reliably may improve if the non-custodial parent can achieve some level of financial stability through a Chapter 13 repayment plan

If you are facing a trial or a hearing regarding child support obligations, it would be a mistake to expect that your bankruptcy filing will offer much protection, although the elimination of your obligation to pay other debts due to the automatic stay protection may improve your financial capacity to deal with your child support obligations.

There is still a great deal of misinformation on the Internet about the discharge of support and/or property divisions, and this part of Section 523 has been changed by Congress several times.  Here is a link to Section 523 of the Bankruptcy Code, which sets out the types of debts that are dischargeable.   If you owe child support, alimony or any other debt arising from a divorce or support order, you should assume that this debt is not dischargeable and you should speak to an experienced bankruptcy lawyer for confirmation of this.

Chapter 13 Discharge Held Up if You Owe Child Support or Alimony

In the Northern District of Georgia, Chapter 13 debtors must complete a form called a Section 1328 Certificate prior to the close of their case certifying that you have paid all of your domestic relations obligations.  If you have not, the judge will hold a hearing to determine whether your failure to pay was beyond your control.   If the Bankruptcy Judge finds that you had the ability to pay but did not, he will not issue a Chapter 13 discharge.  Thankfully, we have not had any Chapter 13 discharges held up because of this but you can imagine how frustrating it would be for someone to pay their trustee for five years and not get a discharge because of  a child support or alimony issue.

About 

Jonathan Ginsberg represents honest, hardworking men and women in the Atlanta area who need bankruptcy protection. Call him at 770-393-4985 for a confidential discussion.

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