Will Bankruptcy Discharge Child Support Payments?
After an initial child custody determination, it is not uncommon for circumstances to change and financial statuses of the parties to look significantly different. In some extreme cases, parents find themselves having to file for bankruptcy due to the extreme financial hardship and inability to pay debts, bills, and their assets not covering their liabilities. If your former partner is filing for bankruptcy, you may be worried about the sustainability of your child support payments. While the finances of a party may decrease the needs of a child do not. Therefore, it is important to know your rights if your partner is filing for bankruptcy and neglecting to pay the court ordered child support. Contact a Tallahassee Child Custody Attorney today to discuss the necessary steps you should take, as well as your rights in this matter.
As of 2005, with the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act, legislators specifically created protections for Domestic Support Obligations. Domestic Support Obligations refer to monies owed to “a spouse, former spouse, or child of the debtor or such child’s legal parent, legal guardian, or responsible relative; or government unit” 11 U.S.C. 101(14A). This may include alimony, maintenance, or support for a former spouse or child. Therefore, if you were awarded alimony or child support in your initial divorce or child custody determination you will fall under these Domestic Support Obligation protections.
Of course, the general purpose of bankruptcy proceedings is to prevent creditors from collecting debts and allow the court to restructure the payment schedule and obligations of the debtor in order to bring them back to a stable financial status. This process may include discharging certain debts, ranking creditors, and only paying portions of certain debts. However, with child support payments qualifying as Domestic Support Obligations, they have priority among all creditors other than a Trustee’s administration or secured claims 11 U.S.C. 507(a)(1). Therefore, the payments due in the future as well as the back paid child support will be addressed by the court quickly, if not first, when determining a debtor’s responsibilities. Federal bankruptcy law prohibits the discharge of Domestic Support Obligations, protecting you fully to receive the past payments as well as future. 11 U.S.C. 523 (a)(5)
Further, even though your former partner’s financial position has significantly changed possibly warranting a modification of the child support order. They cannot be granted a modification of the existing child support through the bankruptcy court. They will need to file a modification with the court who retains jurisdiction over your family law matter. Therefore, simply because the financial situation has changed, you will be entitled to the past due child support in full as well as future payments in full until the obligated party takes the proper steps to modify their support order.
The intermingling of bankruptcy and family law is complicated, and you will need an experienced Tallahassee Attorney to walk you through this process. We will be able to discuss with you the bankruptcy proceedings as well as the protections provided to you and your child during this process. While financial status changes, the duty to care and finally support your child does not. Therefore, ensure you are receiving the legally entitled financial support.
Speaking to an attorney at our Tallahassee office is free of charge, and we accept calls 24 hours a day, 7 days a week. Contact us at 850-307-5211 or complete an online contact form to get in touch with a member of our team today.