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Can Child Support Arrears Be Discharged by Bankruptcy?

Can Child Support Arrears Be Discharged by Bankruptcy?

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.

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