Bankruptcy is an option for some because it can automatically stay the obligation to satisfy their debts and can give the filer an almost immediate peace of mind. Chapter 7 bankruptcy allows a debtor to personally erase certain permitted debts.
To qualify to file for chapter 7 bankruptcy, the debtor’s income must be equal to or below the median income in the debtor’s state, or the debtor must otherwise pass a “means test.”
While bankruptcy can be tremendously helpful to the filer, it can mean some creditors are left without recourse for collecting on their debts. However, if the debt is considered a support debt (student loan, alimony, child support), filing for bankruptcy does not automatically stay or discharge those debts.
Because bankruptcy is a limited legal proceeding, with regard to these support debts the filer must seek to modify the underlying orders creating those legal obligations.
- What Qualifies as Child Support?
- How Does Chapter 7 Bankruptcy Affect Your Ability to Pay Child Support??
- What Should I Do If I Want to Modify My Child Support Payments During a Bankruptcy?
- Can Other Potential Income Be Used to Satisfy Child Support?
- What Should You Do About Child Support During a Bankruptcy Proceeding?
- Should I Consult an Attorney If I am Filing for Bankruptcy and am Worried About Child Support?
Child support is the amount of money a non-custodial parent is legally required to pay the custodial parent. Intended to benefit the child, child support can be used to cover the child’s food, shelter, clothing, health and well-being, and educational costs.
Child support is usually determined based on the financial information and the amount of time the non-custodial parent spends with the child.
While there are some negative consequences for filing for bankruptcy (decrease of credit score and the difficulty of obtaining a subsequent mortgage), permanently discharging several debts concurrently might outweigh the negatives for the filer. This may be the thought process for a parent who is seeking to discharge a child support obligation by filing for bankruptcy.
When one parent decides to file for bankruptcy and is under an obligation to pay child support, the custodial parent will be interested in how doing so will affect their ability to collect child support. However, chapter 7 bankruptcy does not automatically stay or erase the filer’s obligation to pay child support. Depending on the parent’s specific circumstances, the bankruptcy filing also may not be sufficient to warrant a modification of the child support.
Bankruptcy laws prioritize certain debts, which means even when the debtor successfully files for bankruptcy, certain creditors are still allowed to recover against the debtor. Whether a creditor is able to collect on these debts even when there is a bankruptcy filing depends on whether the debts are classified as priority debts.
The highest priority debts include support debts such as student loans and child support. If the bankrupt parent retains property exempt from creditors, it also can be sold to pay back child support.
During your bankruptcy, the state family court with jurisdiction over your case can still order hearings as to your failure to pay child support. Additionally, efforts by the state and the court to enforce a child support order will proceed as if there is no bankruptcy.
The bankrupt parent’s option is to file for a modification of the child support order. The evidence of a bankruptcy filing or proceeding does not automatically establish a need for the modification of a child support order. The bankrupt parent must establish there is a changed financial circumstance to justify a modification of the child support order based on their inability to pay.
Typically, the inability to pay child support may occur if the parent has decreased income or assets since the child support order was created. The court will consider several factors in determining whether to modify the court order, including whether the changes in circumstances are material, voluntary and temporary.
Keep in mind that property not available to creditors can be seized and sold to satisfy child support obligations of a bankrupt parent. Additionally, income or property obtained after the filing of bankruptcy generally is not shielded and may be ordered used to pay child support.
Even as the chapter 7 bankruptcy proceeding is ongoing, you must make your best efforts to continue to pay your monthly child support payments. Even with the bankruptcy, the custodial parent still can file a lawsuit to collect your overdue child support and any currently due child support.
The bankruptcy court will consider your child support order when it reviews your list of outstanding debts to determine the amount available to be erased.
Bankruptcy typically will not discharge or modify your obligation to pay child support and the state may pursue enforcement efforts against you to collect the child support. Consider consulting with a local child support attorney regarding your legal obligations and options for modifying the child support order.