My ex filed for bankruptcy and he owes me back child support. Does he still have to pay me?

If your ex files for bankruptcy, he or she will still have to pay back child support he owes to you.

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Question

My ex-husband and I divorced last year and the judge ordered him to pay me child support for ten years. He has already missed many of his payments and owes me a lot of back child support. But he just filed for bankruptcy relief. Does he still have to pay me?

Answer

Domestic support obligations such as alimony and child support receive special treatment in bankruptcy. If your ex-husband owes you child support, he can’t discharge (eliminate) his obligation by filing for bankruptcy. But whether you will receive the back child support he owes during his bankruptcy depends on whether he files for Chapter 7 or Chapter 13 bankruptcy. Read on to learn more about how bankruptcy affects child support obligations.

For more information on how bankruptcy affects divorce orders and proceedings, see our topic area on Divorce & Bankruptcy.

Domestic Support Obligations Are Not Dischargeable in Bankruptcy

Filing for bankruptcy doesn’t wipe out all types of debt. Certain debts are considered too important to be discharged in bankruptcy. These are called nondischargeable debts. Domestic support obligations such as alimony and child support are nondischargeable debts that can’t be eliminated by filing for bankruptcy.

To learn more about nondischargeable debts in bankruptcy, see Which Debts Cannot Be Discharged in Chapter 7 Bankruptcy? and Debts That Survive Chapter 13 Bankruptcy.

Ongoing Child Support Payments in Bankruptcy

Bankruptcy doesn’t affect your ex-husband’s obligation to pay you child support. Whether he files for Chapter 7 or Chapter 13 bankruptcy, he must continue to make his ongoing child support payments to you as they come due. In addition, before he can receive a discharge in Chapter 13 bankruptcy, he must certify to the court that he is current on all of his domestic support obligations.

Back Child Support in Chapter 7 Bankruptcy

In addition to being nondischargeable, child support is also considered a priority debt in bankruptcy. In fact, domestic support obligations have the highest priority of any type of debt in bankruptcy. This means that if there are any proceeds to distribute in your ex-husband’s Chapter 7 bankruptcy, you will be the first creditor to receive payment.

But keep in mind that to get paid in bankruptcy, you or the appropriate state child support agency must file a proof of claim with the court and include supporting documentation to show the amount of back child support owed. (To learn more, see our topic area on The Proof of Claim in Bankruptcy.)

If there are no assets to distribute, you will not receive anything from your ex-husband’s bankruptcy. But his bankruptcy discharge will not eliminate his outstanding child support arrears.

For more information, see Child Support Debt in Chapter 7 Bankruptcy.

Back Child Support in Chapter 13 Bankruptcy

If your ex-husband files for Chapter 13 bankruptcy, he must pay off all of his priority obligations through his repayment plan. This means that a portion of your ex-husband’s monthly Chapter 13 plan payment will go towards satisfying the back child support he owes you. Your ex must pay off all of his outstanding child support arrears and be current on his ongoing support payments before he can receive a Chapter 13 discharge.

To learn more, see Child Support Debt in Chapter 13 Bankruptcy.

by: , Attorney

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