Child Support and Bankruptcy

Both parents have a legal responsibility to care for their children financially. Courts take this obligation seriously. A judge won't relieve a parent of this duty in most cases. That is why it is important to understand the legal rights and obligations of child support and bankruptcy.

Let's say you are a parent who pays child support and might file bankruptcy. You should know how bankruptcy affects your child support obligation. Or, if you are receiving child support, how does your co-parent's bankruptcy process affect child support payments?

Below are frequently asked questions about child support and bankruptcy.

My Ex-Spouse Has Declared Bankruptcy and Now Says They Do Not Have To Pay Child Support. Is That True?

No. 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. The bankruptcy petition won't stop actions to establish paternity. It won't stop a court order for child support. It won't stop actions to modify child support obligations.

If your co-parent has stopped paying child support, the court and state department of social services can intervene. There are several methods they can use to enforce child support responsibilities. But, the child support/bankruptcy relationship is complicated. You may need legal advice from a bankruptcy attorney.

My Co-Parent Filed for Bankruptcy Last Week. They Owe Back Child Support for More Than Six Months. Will Bankruptcy Wipe This Out?

No. Filing for bankruptcy does not discharge unpaid child support payments (sometimes called child support arrears), so your co-parent's obligations on back child support debt will remain in place.

An obligor or paying parent may file a motion to modify a support order. They may file if they have trouble making payments due to changed finances. This could be a loss of a job or decrease in income. They will request to modify the support order in family court, not bankruptcy court. The judge can grant the motion and lower future monthly payments. The obligor or paying parent is still responsible for the total child support arrears.

I May File for Bankruptcy. I See Debts "In the Nature of Support" for Children Cannot "Be Discharged." What Does This Mean? Does It Matter What Type of Bankruptcy?

When filing for Chapter 7 bankruptcy or filing for Chapter 13 bankruptcy, debts "in the nature of support" cannot be discharged. If you file for Chapter 7 bankruptcy or Chapter 13 bankruptcy, your debts "in the nature of support" will not be discharged.

"In the nature of support" of children means any debts you make that relate to your child-rearing costs. These can include expenses besides child support payments. For example, it would include medical bills for your child. If you have health care expenses for care that your child received, you cannot wipe them out in bankruptcy.

A bankruptcy lawyer can help you decide what type of bankruptcy works best for you.

My Ex-Partner Has a Bankruptcy Case. What Do I Need To Do To Make Sure I Get Child Support Payments?

Nothing. You don't need to act if you have a child support order. Child support arrearages are non-dischargeable debts. In Chapter 13 cases, debtors make a repayment plan. Your ex-partner will have to include a specific payment plan for child support arrears for Chapter 13 in the repayment plan. If your ex files Chapter 7, the assets are sold off to pay the debts. Many debts can be discharged, but not past due child support.

What Is an "Automatic Stay" in Bankruptcy Proceedings? I Pay Child Support to My Co-Parent. Will This Stop Wage Garnishment by the Child Support Agency?

An "automatic stay" is an injunction. Under the Bankruptcy Code, the stay stops creditors from being able to get money from the person who filed for bankruptcy. The automatic stay requires creditors to stop taking payments. But not all the debtor's debts are subject to the automatic stay. The automatic stay will not affect ongoing child support payments and spousal support or alimony payments.

Talk to an Attorney About Child Support and Bankruptcy

Bankruptcy law lets you file bankruptcy to manage your debts. But public policy requires both parents to support their child. A parent's obligation to pay child support does not end until a child emancipates. You cannot wipe out a child support obligation by filing for bankruptcy. If you are in a difficult financial position, you can file a motion to modify in court. The court will hear your motion and could reduce your monthly payments. Contact a skilled child support lawyer to discuss your specific situation and learn about your options.

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Can I Solve This on My Own or Do I Need an Attorney?

  • Some states allow you to set up child support with forms and court processes
  • You may need legal help to set up or modify child support arrangements
  • If there is conflict, an attorney can advise if the other parent’s actions are legal 

Get tailored advice about paying or receiving child support. Many attorneys offer free consultations.

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Don't Forget About Estate Planning

Once new child support arrangements are in place, it’s an ideal time to create or change your estate planning forms. Take the time to add new beneficiaries to your will and name a guardian for any minor children. Consider creating a financial power of attorney so your agent can pay bills and make sure your children are provided for. A health care directive explains your health care decisions and takes the decision-making burden off your children when they become adults.

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