Whether you’re receiving or paying child support, a bankruptcy filing will not affect it. If you’re owed back child support, it’s an asset. If you’re the one paying child support and owe an arrearage, it’s considered an unsecured priority debt that is not dischargeable.
Written by Attorney Andrea Wimmer.
Updated September 29, 2020
No. Whether you’re receiving or paying child support, a bankruptcy filing will not affect it. If you’re owed back child support, it’s an asset. If you’re the one paying child support and owe an arrearage, it’s considered an unsecured priority debt that is not dischargeable.
What Happens To Back Child Support I’m Owed?
Because it’s money someone owes you, it’s listed as an asset on your Schedule A/B and considered a part of the bankruptcy estate. It will appear in response to Question 29. Most states provide some kind of exemption to protect past-due child support. If you’re using the federal bankruptcy exemptions, any back child support you’re owed is protected.
Even if your state’s law doesn’t provide any kind of protection for child support, it’s not likely that the bankruptcy trustee will try to recover it. After all, if the family court and child support enforcement agency can’t collect it, there’s little chance that the trustee is able to recover any funds.
How Does The Court View The Child Support Income I Received Before Filing?
It’s considered income, so it’s listed on the means test form. Don’t include missed child support payments in your means test calculation. If you’ve been getting payments regularly and expect ongoing child support payments to continue, you’ll also have to list it as income on your Schedule I.
If you’ve saved some or all of the child support income you received before filing, that money is considered property of the bankruptcy estate. As long as you didn’t mix the funds with other income by keeping them in a separate account, the exemptions you’re using will likely still cover them. If there’s a lot of money in the account, it can’t hurt to schedule a free consultation with a local bankruptcy lawyer just to make sure.
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What About The Child Support Income I Receive After Filing?
Just like any other income, child support income you receive after your bankruptcy case has been filed with the court is yours to keep. The ongoing bankruptcy proceedings won't change that.
How Does It Work If I Owe Child Support?
The first thing you have to know is that no type of bankruptcy can eliminate your child support debt. Plus, it’s one of the exceptions to the Bankruptcy Code’sautomatic stay that says your wages can’t be garnished while your bankruptcy case is pending. Any garnishment due to a child support order will continue even after filing bankruptcy.
What About Overdue Child Support?
Missed child support obligations are considered an unsecured debt, but they’re considered a priority debt and get special treatment. Under bankruptcy law, child support arrears get paid before other unsecured creditors, like credit card companies and medical bills. It doesn’t matter how much total debt you have. The debt relief you receive in the form of a Chapter 7 bankruptcy discharge will not include child support debt. You will continue to be subject to any court order the family law court has entered against you.
Chapter 13 Bankruptcy Affects Child Support In A Different Way
If you file Chapter 13 bankruptcy, domestic support obligations like child support and alimony have to be paid off in full as part of the Chapter 13 plan. The bankruptcy court won’t confirm your repayment plan if it doesn’t pay off this type of debt. If you’re thinking of filing Chapter 13 to stop a foreclosure and protect real estate, it’s important to keep this in mind. If you’ve missed child support payments and mortgage payments, speak to a bankruptcy attorney about your options.
If you’re due child support under a child support order from the family court, it’s part of your bankruptcy estate. You’ll have to include the payments you’ve received before your bankruptcy filing as income on the means test. Exemptions will likely protect the child support arrears you’re owed. Even if not, it’s highly unlikely that the trustee would go through an expensive legal proceeding to try and collect the funds.
If you’re required to pay child support, filing bankruptcy will not stop this requirement. The automatic stay will not protect you from ongoing garnishment for this type of debt. Child support arrears can’t be discharged in either Chapter 7 or Chapter 13 bankruptcy, though you can use the Chapter 13 repayment plan to get caught up.