If you are behind on child support payments, filing for Chapter 13 bankruptcy will not discharge your obligations -- 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.
Because of public policy concerns, 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 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.
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. As discussed above, any pre-bankruptcy child support arrears must be included and paid off in your Chapter 13 plan. (To learn more about the plan, see the articles in The Chapter 13 Repayment Plan.)
In most cases, paying child support can actually reduce the amount you would otherwise have to pay to general unsecured creditors (such as credit card companies) through your plan. Since most debtors would rather help their children than pay credit card bills, filing for Chapter 13 bankruptcy can help you get caught up on your back child support while discharging more of your other unsecured debt.
In bankruptcy, the automatic stay does not prohibit efforts to collect child support debt from property that is not part of your bankruptcy estate. However, during Chapter 13 bankruptcy, your earnings are considered property of the bankruptcy estate. As a result, unlike in Chapter 7 bankruptcy, a creditor must get court permission (by filing a motion for relief from the stay) before initiating an action to collect child support from your post-bankruptcy earnings. (Learn what's in your bankruptcy estate.)
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 separate action to collect those amounts outside of bankruptcy. However, the interaction between family law and bankruptcy law is complex and may vary depending on where you live and the assigned judge in your case. As a result, consider talking to a knowledgeable attorney in your area to see how bankruptcy may affect your child support obligations. (You can find family law attorneys in your area through Nolo's Lawyer Directory.)
Chapter 13 bankruptcy only allows you to cure your pre-bankruptcy child support arrears through your plan. This means that 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.
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.