Both parents have a legal responsibility to financially care for their child. Courts take this obligation very seriously and generally won't relieve a parent of this duty. If you're paying child support and considering filing for bankruptcy, you may want to know how a bankruptcy will affect your child support responsibilities. On the other hand, if you're currently receiving child support, and the paying parent has filed for bankruptcy, you may be wondering what effect this will have on your child support payments.
Below are some basic questions and answers about child support and bankruptcy, including the effect of a bankruptcy filing on support obligations and amounts.
Q: My ex-spouse has declared bankruptcy, and now says she doesn't have to pay child support. Is that true?
A: NO. Domestic support obligations including support payments generally cannot be discharged in bankruptcy. This means that a parent who owes child support cannot escape this duty by filing for bankruptcy. Bankruptcies do not act as a stay, or hold, on actions to establish paternity or to modify child or establish support obligations.
If your co-parent has stopped paying child support, the court and state department that administers support may use several methods to attempt to enforce child support responsibilities.
If a Chapter 7 bankruptcy is filed, the debtor will get no relief from the bankruptcy filing and will have to continue to make payments on the obligations. If a Chaper 13 bankruptcy is filed, the debtor may get some additional time to cure any arrears but the bankrupty will not complete unless all outstanding support obligations are paid.
Q: My co-parent filed for bankruptcy last week. He owes back child support for more than six months. Will bankruptcy wipe this out?
A: NO. Filing for bankruptcy does not discharge unpaid child support payments (sometimes called payments "in arrears"), so your co-parent’s obligations on back child support will remain in place.
Note that if a paying parent’s financial situation has changed since a child support order was first issued, that parent may file a motion to modify the order if he or she is having trouble making payments. Even if a judge grants the motion and lowers future child support payments, the parent is still responsible for the full amount of back child support.
Q: I'm looking into filing for bankruptcy, and I read that debts "in the nature of support" for children can't be discharged. What does this mean?
A: The bankruptcy code defines "domestic support obligations" to include amounts owed to a spouse, former spouse or child but also to include any amounts that are "in the nature of alimony, maintenance, or support". As such, any debts you incurred that relate to your child's welfare and upbringing, other than unpaid child support payments owed, might be included as non-dischargeable support. It is recommended that you contact your family law attorney or review your divorce papers for any clarification on what is included in support.
Talk to an Attorney About Child Support and Bankruptcy
In general , a parent's obligation to pay child support cannot be wiped away by filing for bankruptcy. Contact David A. Arietta, Esq. to review options if your are involved in a bankruptcy filing at (925) 472-8000.