Too often we see instances of a parent who owes
past due child support. Some prefer to look at it as a “missed payment” (or missed
payments) while others simply see it as an obligation they couldn’t
meet during certain months, but when court ordered child support is not
paid, this is not an issue that is easily dismissed. In many cases, the
missed payment or two quickly snowballs into a major debt. This is the
point at which parents behind on their child support start hearing phrases
like “child support arrears” and “enforcement of the
court order.” Rather than go through the family court, some in this
situation may consider solving their problem through bankruptcy. They
assume that if they feel that they can’t afford to pay their child
support payments, any arrearage will be able to discharged along with
the rest of their debt through the bankruptcy process. This is a delusion
that may cause parents behind on their child support payments to fall
even more behind.
Filing for a Chapter 7 bankruptcy immediately stops all creditors from
coming after the filer to collect on debts; it’s called the automatic
stay. But child support is an exception to this bankruptcy rule. The automatic
stay that stops creditors from collecting will not prevent or even delay
any lawsuit establishing child support or collect child support (as long
as the property it is being collected from is not part of your bankruptcy
estate). As property obtained after your bankruptcy filing date, wages
earned are fair game for those attempting to collect on child support
even in the midst of a Chapter 7 bankruptcy.
Not only can creditors attempting to collect on child support arrearages
continue their efforts during your bankruptcy filing, but the Chapter
7 itself will not discharge child support arrearages. Child support debt
gets special treatment. It is referred to as a “priority debt.”
This type of debt is not dischargeable through bankruptcy. So any outstanding
child support owed will not be wiped out by filing for Chapter 7 bankruptcy.
Filing for Chapter 13 bankruptcy will not discharge your obligations in
terms of child support either. But it can be useful in helping you get
caught up if you have child support arrearages. While regular child support
payments will need to be made on a continuous basis during the Chapter
13, the arrearages will be included in the reorganization of debt that
will be paid off through agreed upon monthly payments throughout the course
of the plan. The law requires that you pay off any outstanding child support
arrears in full in the course of the Chapter 13 bankruptcy repayment plan.
During Chapter 13 bankruptcy, earnings are considered the property of
the bankruptcy estate so creditors must obtain permission from the court
before they start an action to collect child support from your earnings
after a Chapter 13 bankruptcy.
In most cases, if you are making your reorganization plan payments on time
and thus addressing the problem of pre-bankruptcy child support arrearages,
there won’t be any separate actions to collect on the debt outside
of the bankruptcy. Keep in mind that if you do not stay current on child
support payments throughout the course of your Chapter 13 reorganization
plan, the bankruptcy court can lift the stay allowing the creditor to
go after your post-bankruptcy earnings (even though they are technically
the property of the bankruptcy estate). Once the Chapter 13 reorganization
plan is completed, you must certify that you are current on child support
obligations before you can receive your Chapter 13 discharge. If any payments
were missed during the bankruptcy case, they must be paid off before you
can get the discharge of debt.
If you have questions regarding payment of child support, child support
arrearages or how to manage when you can’t afford your
child support payments, please get in touch with the experienced Arizona divorce lawyers at
Arizona Family Law Attorneys.