Filing for Chapter 13 bankruptcy will not discharge your past-due child support, but it can help you to get caught up. However, keep in mind that you still need to make your ongoing child support payments during your Chapter 13. Read on to learn more about how child support debt is treated in Chapter 13 bankruptcy.
Child support is part of a class of debts called Domestic Support Obligations (DSOs), which includes alimony and property divisions meant as support. Child support can go beyond the familiar monthly payment, to include items like paying for the child's travel expenses, summer camps, tuition, medical insurance and other medical expenses, most of which will be detailed in orders entered in your divorce.
The bankruptcy is not intended to disrupt those orders or those payments. In fact, you're required to keep up your monthly child support obligations regardless of the form they take. When developing your Chapter 13 budget, consider the extra obligations listed above, in addition to your monthly cash payments, so that you'll have enough money to cover them.
Because the American public considers child support a very serious obligation, Congress has decided that child support debt is too important to be discharged in bankruptcy. As a result, in Chapter 13 bankruptcy, your child support obligation is treated as a priority debt (one that is paid first) and can't be eliminated by your discharge. In fact, you must pay off any outstanding child support arrears (missed payments) in full through your Chapter 13 repayment plan (which can last from three to five years). Paying off past due child support might leave some unsecured creditors, such as credit card companies, with less money, But that should be of no concern to the debtor because any remainder gets discharged.
As discussed above, any pre-bankruptcy child support arrears must be included and paid off in your Chapter 13 plan. One of the main benefits of Chapter 13 bankruptcy is that it allows you to organize your debts and pay back some or all of them through a convenient repayment plan that can last as long as three to five years. Because of the importance we attach to child support, you must provide for repayment of all your past due child support over the life of the plan.
To learn more about the plan, see the articles in The Chapter 13 Repayment Plan.
If your child support creditor has a garnishment against your pay, your bankruptcy attorney will likely recommend that you file a Chapter 13 case for two reasons. First, Chapter 13 gives you a repayment plan that allows you to get caught up on your past due child support. Second, Chapter 13 will stop the garnishment while you're in the Chapter 13 case. Stopping a garnishment while you're in a Chapter 7 is much more difficult.
Generally, as long as you are making timely plan payments and curing your pre-bankruptcy child support arrears through your Chapter 13, you don't need to worry about a child support creditor or agency filing a separate action to collect those amounts outside of bankruptcy.
Chapter 13 bankruptcy only allows you to cure your pre-bankruptcy child support arrears through your plan. You must continue making your regular child support payments that come due during your case. If you stop paying child support during your Chapter 13, the court will normally lift the stay and allow the creditor to go after your earnings even if they are property of the bankruptcy estate.
If you're having trouble making both your regular child support payments and your Chapter 13 repayment plan, contact your attorney or your state child support agency to find out if they have a way for you to modify your child support payments. You'll have to prove that you've experienced a change in circumstances, like you lost your job or became ill and couldn't work.
Before you can receive a Chapter 13 discharge, you must certify that you are current on all of your domestic support obligations, including child support. As a result, if you missed any child support payments during your case, you have to pay them off before you can get your discharge.
To learn how other debts are treated in Chapter 13, see Your Debts in Chapter 13 Bankruptcy.
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