How Does Filing Bankruptcy Affect Child Support and Spousal Support?

If you or your former spouse files bankruptcy, the Bankruptcy Code provides answers to how child support and spousal support are affected. 

I.  The Automatic Stay Imposed By Filing Bankruptcy Does Not Apply

The automatic stay, the injunction that stops other court proceedings when a bankruptcy is filed, does not stop or prevent child support and spousal support proceedings in state family courts.  If you file bankruptcy, you will remain obligated to pay your child support and spousal support previously ordered in state family court.  If your former spouse filed a motion to hold you in contempt for failure to pay your obligation for child or spousal support, that proceeding will go forward at the scheduled time.  If your former spouse, or the county prosecutor’s office may file a motion to enforce your obligations in the state family court while your bankruptcy case is open.  The bankruptcy court will not intercede to have the state court proceedings interrupted, postponed, or cancelled. 

II.  Child Support And Spousal Support Obligations Are Not Discharged By Filing Bankruptcy

The Bankruptcy Code specifically excludes from the bankruptcy discharge of debts any obligations for child support or spousal support.  Although you must include the name of the person to whom you owe child support and spousal support as a creditor in your bankruptcy petition, you will continue to be personally liable for the child support and spousal support you owe to your former spouse, as if you had not filed bankruptcy. 

III.  Child Support and Spousal Support Must Remain Current While Your Bankruptcy Remains Open

The Bankruptcy Code requires you to remain “current” on your child support and spousal support obligations while you are in bankruptcy, that is, while your bankruptcy case remains open.

Being “current” does not mean that you must have all child support and spousal support paid up with no arrearages on the date you file your bankruptcy petition.  Being “current” means that, from the date you file your bankruptcy petition until you receive your bankruptcy discharge, you do not get behind on any child support or spousal support obligations you may have.  In other words, if you have an arrearage in child support or spousal support on the date you file your bankruptcy petition, you may not get further behind, and you must make all regular child support or spousal support payments due until you receive your bankruptcy discharge; if you are current on your child support or spousal support obligations on the date you file your bankruptcy petition, you may not have any arrearages occur until you receive your bankruptcy discharge. 

If you do not remain current on your child support and spousal support obligations during your bankruptcy proceedings, you are not eligible to receive a discharge, and in fact, will not receive a discharge, of your dischargeable debts.  In effect, if you do not remain current on child support and spousal support obligations while in bankruptcy proceedings, you defeat the purpose of filing bankruptcy, which is to receive a discharge of your dischargeable debts. 

IV.  Child Support and Spousal Support Are Not Dischargeable Debts

The Bankruptcy Code specifically excludes child support and spousal support obligations from the discharge.  You continue to be legally responsible for child support and spousal support.  Your former spouse may pursue collection efforts against you, or the county prosecutor’s office may act on your former spouse’s behalf, in state family court, to require you to pay the child support and spousal support you owe.  In essence, although you must list your former spouse as a creditor for the child support and spousal support obligations you have in your bankruptcy petition, those obligations remain your responsibility both during and after your bankruptcy case is completed. 

V.  My Experience In Both Family Court and Bankruptcy Can Benefit You When Filing Bankruptcy

I have many years of experience representing clients in state family court proceedings who are behind on child support and spousal support obligations, as well as may years of experience representing clients in bankruptcy proceedings.  My experience in both areas of the law can benefit you when you file bankruptcy.  I would encourage you to meet with me to go over your particular circumstances, involving the interplay between bankruptcy and support obligations, when you are considering filing bankruptcy.  Call today for an appointment.  I would be happy to review your circumstances, explain the bankruptcy process, and provide you my advice regarding your best course of action.