Child support obligations receive special treatment in bankruptcy. You cannot discharge child support debt by filing for bankruptcy. But you can catch up on your missed payments through a Chapter 13 repayment plan. Read on to learn more about how bankruptcy affects child support obligations.
Child Support Is Not Dischargeable in Bankruptcy
Congress has decided that certain types of debt (called priority debts) are too important get wiped out in bankruptcy. Child support is a priority debt that cannot be discharged through bankruptcy. This means that even if you complete your bankruptcy case and receive a discharge, you are still responsible for all of your child support payments.
If you were behind on your child support obligations prior to filing your case, you are still required to pay back all amounts that have come due. However, you can use Chapter 13 bankruptcy to reorganize your debts and catch up on your missed child support payments (discussed below).
To learn more about nondischargeable debts, see Debts That Survive Chapter 7 Bankruptcy.
Child Support Has Priority Over Other Types of Debt
In addition to being nondischargeable, priority debts receive special treatment in bankruptcy. In Chapter 7 bankruptcy, priority debts get paid before other debts if there are any proceeds to distribute to creditors. In fact, child support is paid even before other priority debts.
In Chapter 13 bankruptcy, all child support payments you were behind on prior to filing your case must be paid back in full through your repayment plan. Because a Chapter 13 plan cannot exceed five years, excessive child support arrearages can lead to a high monthly plan payment.
Also, you must continue to make your ongoing child support payments during bankruptcy. Before you can receive a Chapter 13 discharge, you must certify to the court that you are current on all alimony and child support obligations at the time you complete your case.
For more information about priority debts, see Priority v. Nonpriority Claims in Bankruptcy.
Child Support and the Automatic Stay
When you file for bankruptcy, the automatic stay prohibits most creditors from collecting their debts from you. If a creditor wants to initiate or continue a collection action during bankruptcy, it must get permission from the court first. But the automatic stay does not apply to certain activities relating to child support.
The automatic stay does not prohibit:
- legal proceedings to establish or modify an order for child support
- collection of child support from property that is not part of the bankruptcy estate (keep in mind that wages earned after a Chapter 7 bankruptcy is filed are not property of the bankruptcy estate and therefore not protected by the automatic stay), or
- income withholdings to pay child support pursuant to an administrative or court order or statute (whether the income is property of the estate or not).