When you file for Chapter 7 bankruptcy, the automatic stay stops most creditors from coming after you to collect their debts. However, past due child support debt is an exception to this rule. The automatic stay does not prevent or delay a lawsuit to establish child support or collect it from property that is not part of your bankruptcy estate. In Chapter 7 bankruptcy, anything you get after your filing date is not considered property of the bankruptcy estate. This includes any wages earned after filing your case. Since your post-bankruptcy earnings are not property of the estate, child support creditors are free to go after them during your bankruptcy.
Child Support Debt Can’t Be Discharged in Chapter 7 Bankruptcy.
In Chapter 7 bankruptcy, child support debt receives special treatment because it is considered a priority debt. Priority debts are nondischargeable in bankruptcy. This means that if you owe any outstanding child support debt, it will not get wiped out in your chapter 7. As a result, filing for Chapter 7 bankruptcy will not eliminate your obligation to pay child support and make up any missed payments.
You Must Continue Making Ongoing Child Support Payments During Bankruptcy
Since child support is a priority debt, filing for Chapter 7 bankruptcy does not affect your obligation to make your ongoing payments as they come due. If you can’t afford to keep up with your child support payments, Chapter 7 bankruptcy can help you by wiping out your other debts and freeing up more income to put towards child support.
How Does Chapter 13 Affect Past Due Child Support?
If you are behind on child support payments, filing for Chapter 13 bankruptcy will not discharge your obligations — but it can help you to get caught up. However, keep in mind that you still need to make your ongoing child support payments during your Chapter 13. Read on to learn more about how child support debt is treated in Chapter 13 bankruptcy.
Chapter 13 Discharge Does Not Wipe Out Child Support Debt
Congress decided that child support debt is too important to be discharged in bankruptcy. As a result, in Chapter 13 bankruptcy, your child support obligation is treated as a priority debt and can’t be eliminated by your discharge. In fact, you must pay off any outstanding child support arrears (missed payments) in full through your Chapter 13 repayment plan.
Chapter 13 Bankruptcy Allows You to Catch Up on Missed Child Support Payments
One of the main benefits of Chapter 13 bankruptcy is that it allows you to organize your debts and pay back some or all of them through a convenient repayment plan. As discussed above, any pre-bankruptcy child support arrears must be included and paid off in your Chapter 13 plan.
In bankruptcy, the automatic stay does not stop efforts to collect child support debt from property that is not part of your bankruptcy estate. However, during Chapter 13 bankruptcy, your earnings are considered property of the bankruptcy estate. As a result, unlike in Chapter 7 bankruptcy, a creditor must get court permission (by filing a motion for relief from the stay) before starting an action to collect child support from your post-bankruptcy earnings.
Generally, as long as you are making timely plan payments and curing your pre-bankruptcy child support arrears through your Chapter 13, you don’t need to worry about a separate action to collect those amounts outside of bankruptcy.
You Must Make Ongoing Child Support Payments As They Come Due
Chapter 13 bankruptcy only allows you to cure your pre-bankruptcy child support arrears through your plan. This means that you must continue making your regular child support payments that come due after your case is filed. If you stop paying child support during your Chapter 13, the court will normally lift the stay and allow the creditor to go after your earnings even if they are property of the bankruptcy estate.
You Must Be Current on Child Support Payments to Receive a Discharge
Before you can receive a Chapter 13 discharge, you must certify that you are current on all of your domestic support obligations including child support. As a result, if you missed any child support payments during your case, you have to pay them off before you can get your discharge.