Child Support and Bankruptcy
Both parents of a child have a legal responsibility to financially care for their child. Courts take this obligation very seriously and generally will not relieve a parent of this duty. If you are paying child support and considering filing for bankruptcy, you may want to know how a bankruptcy ruling will affect your child support responsibilities. On the other hand, if you are 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.
Q: My ex-spouse has declared bankruptcy, and now says she doesn't have to pay child support. Is that true?
A: Child 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. The relationship between child support and bankruptcy is complicated, however, and you may need the help of an attorney familiar with bankruptcy law.
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 payment "in arrears"), so your co-parent’s obligations on back child support will remain in place.
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: When filing for Chapter 13 bankruptcy or Chapter 7 bankruptcy, debts “in the nature of support” cannot be discharged. Debts "in the nature of support" for a child are basically any debts you incurred that relate to your child's welfare and upbringing, other than unpaid child support payments owed. For example, if you have medical bills for care that your child received, you will not be able to wipe those out in bankruptcy.
The “in the nature of support” restriction is a complex concept that significantly limits your right to discharge debt that relates to your children. You should seek legal advice if you have questions regarding a particular debt.
For assistance determining whether you are eligible to file for bankruptcy or for information regarding how a bankruptcy declaration will affect child support payments in your case, you may consider contacting an experienced bankruptcy attorney.