Posted by David Falvey on Monday, December 14th, 2020 - 3,993 views
The short answer to this question is no. You generally cannot discharge your duty to pay child support even if you file bankruptcy. Child support is considered a priority non-dischargeable debt.
You may be able to buy yourself some time to pay the arrears, provided you make the future child support payments on time.
Bankruptcy can help parents who owe child support in an indirect but crucial way.
The more you can free up other money, the more money you’ll have to pay child support.
Child Support in Chapter 7
In a Chapter 7 bankruptcy, you can seek to discharge your unsecured debts such as credit card debts. If you don’t have to pay these unsecured bills, then you should have more money to pay your child support obligations.
In a Chapter 7 bankruptcy, you can seek to pay off your secured debts and priority debts over a period of 3 to 5 years. Paying off secured debts and priority debts means paying off the arrears over 3 to 5 years and continuing to pay the monthly support payments as they become due.
In a Chapter 13, you can usually offer to pay a small percentage of the unsecured debts (generally the amount of your disposable income after your core bills and the secured/priority bills).
If you don’t have to pay the unsecured bills or you just have to pay a percentage of the unsecured bills, then you should have more money to make your child support payments.
The automatic stay provisions of the bankruptcy code
Generally, if you file a Chapter 7 or a Chapter 13 bankruptcy, the moment you file the bankruptcy the Bankruptcy Court issues an automatic stay of any claims by creditors. This means creditors cannot contact you, harass you, nor seek to obtain a judgment against you, or seek to enforce their claim.
The automatic stay provision does not apply to child support. The family court and/or the other parent of your child can continue to seek to obtain a judgment against you for your duty to pay child support.
There is a catch though. If you file Chapter 7, then the family court/parent can still seek to attach your income or garnish your wages. Income you earn or any property you acquire after you file for bankruptcy is not considered part of the bankruptcy estate and the family court/parent can go after that property.
If, however, you file Chapter 13, then any income or property you earn or acquire is considered part of the bankruptcy estate.
Creditors including the family court/parent that has the right to collect child support need to ask for relief from the bankruptcy judge in order to go after your income/assets. In most cases, the judge will grant that relief – since paying child support is a top priority.
Whether you’re in bankruptcy or not, the family court may seek to hold you in contempt if you fail to pay child support. If you’re found in contempt, you may be confined to jail until you pay the support.
Your child support obligations in Chapter 7 and Chapter 13
If you file a Chapter 7, you will need to pay any future child support that is due. You will also be obligated to pay the arrears while the Chapter 7 is pending.
In addition, if you have any non-exempt property, then the trustee in bankruptcy can seize that nonexempt property and use it to pay off your child support obligation.
Child support is considered a very high priority debt which means it generally has higher priority than even taxes.
If you file a Chapter 13 bankruptcy, then the child support creditor can still seek to enforce any child support order -provided they get relief from the stay.
In some cases, though, the child support creditor may agree that you can pay the arrears over a 3 to 5 year period. This is provided you continue to pay the future child support payments as they become due. It also depends on if you pay the arrears on time.
The arrears are typically paid to the trustee in bankruptcy. The bankruptcy trustee then pays the family court or whomever has the right to collect the child support payments.
See my previous article Paying Alimony And Child Support Payments After A Bankruptcy to find out general rules for alimony and child support payments in bankruptcy.
Attorney David Falvey has been practicing Connecticut Bankruptcy Law for over 25 years and has helped Connecticut residents get through all their financial difficulties while helping them get their finances back on track.
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