Filing for bankruptcy is a tough decision that can be emotionally and financially draining. If you are going through a divorce or separation, or have children to support, the stakes are even higher. Can you file bankruptcy on child support? This is a question that many people ask, and the answer is not straightforward. In this article, we will explore the basics of bankruptcy and child support, the types of bankruptcy that affect child support, the factors that affect bankruptcy and child support, and the alternatives to bankruptcy for child support.
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Bankruptcy and Child Support: The Basics
Bankruptcy is a legal process that allows individuals or businesses to discharge their debts and get a fresh start. There are two types of bankruptcy that individuals can file for: Chapter 7 and Chapter 13.
Child support is a court-ordered payment that one parent must make to the other parent for the support of their child. The amount of child support is usually based on the income of the parent who is required to pay, and the needs of the child.
Bankruptcy and child support are related because child support is considered a priority debt, meaning that it cannot be discharged in bankruptcy. However, the way in which paying child support is treated in bankruptcy depends on the type of bankruptcy that is filed.
Can you file bankruptcy on child support? No, child support cannot be discharged in bankruptcy. This means that even if you file for bankruptcy, you will still be required to pay your child support obligations.
Types of Bankruptcy and Child Support
Chapter 7 bankruptcy
Chapter 7 bankruptcy is a type of bankruptcy that allows you to discharge most of your unsecured debts, such as credit card debt and medical bills. However, child support cannot be discharged in Chapter 7 bankruptcy.
Filing for Chapter 7 bankruptcy does not affect your child support obligations. You will still be required to pay your child support payments as ordered by the court.
Child support cannot be discharged in Chapter 7 bankruptcy, so there are no requirements for discharging child support.
Chapter 13 bankruptcy
Chapter 13 bankruptcy is a type of bankruptcy that allows you to reorganize your debts and make payments over a period of three to five years. Child support is treated differently in Chapter 13 bankruptcy than in Chapter 7.
Chapter 13 bankruptcy can help you catch up on your child support payments if you are behind. Your child support arrears will be included in your repayment plan and you will be required to pay them over the course of your bankruptcy plan. However, you will still be required to make your ongoing child support payments outside of your bankruptcy plan.
Child support cannot be discharged in Chapter 13 bankruptcy, but you may be able to discharge some of your other debts, which can free up money to pay your child support obligations.
Factors Affecting Bankruptcy and Child Support
- Income: Your income is an important factor in both bankruptcy and child support. In bankruptcy, your income will be used to determine whether you qualify for Chapter 7 or Chapter 13 bankruptcy, and how much you will be required to pay in your Chapter 13 bankruptcy plan. In child support, your income is used to calculate the amount of child support you are required to pay.
- Arrearages: If you are behind on your child support payments, this can affect both your bankruptcy and child support. In bankruptcy, your child support arrears will be included in your repayment plan, and you will be required to make payments to catch up on your arrears. In child support, if you fall behind on your payments, you may be subject to penalties, such as wage garnishment or even jail time.
- Custody and visitation: If you have custody of your child, this can affect your child support obligations. If you are the non-custodial parent, you will be required to pay child support to the custodial parent. If you are the custodial parent, you may be entitled to receive child support from the non-custodial parent. Custody and visitation can also affect bankruptcy if you have to pay for travel expenses or other costs related to custody or visitation.
- State laws: State laws can also affect bankruptcy and child support. Each state has its own laws regarding child support, bankruptcy, and how child support is treated in bankruptcy. It is important to consult with a bankruptcy attorney in your state to understand how the laws in your state may affect your situation.
Alternatives to Bankruptcy for Child Support
- Negotiating with the other parent: If you are having trouble making your child support payments, you may be able to negotiate with the other parent to modify your child support order. You may be able to work out a payment plan or reduce your child support payments if your financial situation has changed.
- Appealing to the court: If you are unable to negotiate with the other parent, you may be able to appeal to the court to modify your child support order. You will need to provide evidence of a change in circumstances, such as a job loss or a reduction in income.
- Seeking legal advice: If you are struggling with child support payments and considering bankruptcy, it is important to seek legal advice. A bankruptcy attorney can help you understand your options and determine the best course of action for your situation.
Conclusion
In conclusion, filing for bankruptcy does not discharge child support obligations. However, the type of bankruptcy you file can affect how child support is treated in bankruptcy. Factors such as income, arrearages, custody and visitation, and state laws can also affect bankruptcy and child support. Alternatives to bankruptcy for child support include negotiating with the other parent, appealing to the court, and seeking legal advice. If you are struggling with child support payments and considering bankruptcy, it is important to seek legal advice to understand your options and make an informed decision.
FAQ
Can child support debt be discharged in bankruptcy?
No, child support debt cannot be discharged in bankruptcy. It is considered a priority debt and must be paid in full.
Can I include child support payments in my bankruptcy filing?
No, you cannot include ongoing child support payments in your bankruptcy filing. Those payments must continue to be made as ordered by the court.
Can I file for bankruptcy if I owe back child support?
Yes, you can file for bankruptcy if you owe back child support. However, the debt will not be discharged and you will still be responsible for paying it.
Will filing for bankruptcy affect my child support payments?
Filing for bankruptcy should not affect your child support payments. You must continue to make payments as ordered by the court.
Can a bankruptcy court modify my child support order?
No, a bankruptcy court does not have the authority to modify a child support order. Only a family court can do so.
Can my child support arrears be forgiven in bankruptcy?
No, child support arrears cannot be forgiven in bankruptcy. They must be paid in full.
Will I lose my professional license if I file for bankruptcy on child support?
It is possible to lose your professional license if you file for bankruptcy on child support, as many states require individuals to be current on child support payments in order to maintain their professional licenses.
Can filing for bankruptcy stop wage garnishment for child support?
No, filing for bankruptcy will not stop wage garnishment for child support. That obligation must be fulfilled.
How long will I be responsible for child support payments?
Generally, child support payments must be made until the child reaches the age of majority, which is typically 18 years old. However, in some cases, child support may continue until the child finishes college or vocational training.
What happens if I don’t pay my child support after filing for bankruptcy?
Failing to pay child support after filing for bankruptcy can result in serious consequences, including fines, jail time, and suspension of your driver’s license or professional license. It is important to continue making your child support payments as ordered by the court.
Glossary
- Bankruptcy: A legal process in which a person or business declares that they cannot pay their debts and seeks protection from creditors.
- Child Support: Court-ordered payments made by one parent to the other for the financial support of their child.
- Debtor: A person or entity who owes money to another.
- Creditor: A person or entity to whom money is owed.
- Chapter 7 Bankruptcy: A type of bankruptcy that involves the liquidation of assets to pay off debts.
- Chapter 13 Bankruptcy: A type of bankruptcy that involves a repayment plan for debts over a period of three to five years.
- Discharge: The release of a debtor from their debts through bankruptcy.
- Automatic Stay: A court order that stops creditors from collecting debts from a debtor once they have filed for bankruptcy.
- Non-Dischargeable Debt: Debts that cannot be eliminated through bankruptcy, such as child support.
- Priority Debt: Debts that must be paid first in bankruptcy, such as child support.
- Reaffirmation: Agreeing to continue to pay a debt after bankruptcy in order to keep the associated asset.
- Trustee: A court-appointed person who oversees the bankruptcy process and manages the sale of assets in Chapter 7 bankruptcy.
- Exemptions: Certain assets that are protected from liquidation in bankruptcy.
- Means Test: A calculation used to determine if a debtor qualifies for Chapter 7 bankruptcy based on their income and expenses.
- Secured Debt: Debt that is tied to an asset, such as a car or house, which can be repossessed or foreclosed upon in the event of non-payment.
- Unsecured Debt: Debt that is not tied to an asset and does not have collateral, such as credit card debt or medical bills.
- Liquidation: The process of selling assets in order to pay off debts in Chapter 7 bankruptcy.
- Repayment Plan: A plan in Chapter 13 bankruptcy that outlines how debts will be paid over a period of three to five years.
- Dismissal: A court decision to end the bankruptcy process before discharge, often due to non-compliance with court orders or fraudulent behavior.
- Adversary Proceeding: A lawsuit filed in bankruptcy court to resolve a dispute between the debtor and creditor.
- Past Due Child Support: Child support that has not been paid by the obligated parent by the court-ordered deadline.
- Child Support Obligation: Child support obligation refers to the legal responsibility of a parent or guardian to provide financial support for their child’s basic needs, including food, shelter, clothing, education, and healthcare. This obligation is typically enforced through court orders or agreements, and failure to comply can result in legal consequences such as wage garnishment or even imprisonment.
