When a parent who is ordered to pay child support is having financial issues, it is not uncommon for that parent to get behind with their support payments, just as they do with their other financial obligations. If they are struggling enough, they may decide to file for bankruptcy. But what happens with their child support obligation and the back support they owe? Are these amounts affected by the bankruptcy filing?
Types of Bankruptcy
There are two different types of personal bankruptcy an individual or a couple can file for, chapter 7 and chapter 13. When a person files chapter 7 bankruptcy, the person filing is required to sell certain assets and the proceeds from those sales go towards the debt. Whatever debt is leftover after the sale of assets is wiped out and the individual no longer owes those creditors.
Chapter 13 does not wipe out the debt and, in most cases, the individual is not required to sell off property. Instead, the bankruptcy reorganizes the debt, creating a payment schedule that is within the ability of the individual to pay. The payments are based on the individual’s income. After three years, whatever debt is still left is wiped out.
How Does Bankruptcy Affect Child Support Payments?
There are certain financial obligations that a bankruptcy petitioner may have that bankruptcy will have no effect on. Child support is in this category. Bankruptcy will provide no relief for child support like it does for other debts and the paying parent must continue to make his or her court-ordered payments even while the bankruptcy process is taking place. In fact, there may be an expectation from the family court that the paying parent should be able to now catch up on their back support since the bankruptcy has provided relief for all of the other debts the parent had.
There is also another reason why a paying parent will want to be caught up with their child support. Since child support is classified as a priority debt, the bankruptcy court requires the petitioner to be current on all support in order for the bankruptcy to be approved.
Child Support Modification
For parents who are struggling financially and are filing for bankruptcy, a child custody attorney may be able to help you obtain a child support modification issued by the family court. Judges will issue a modification in child support obligations if the paying parent can show a substantial change in financial circumstances.
One example for which a support modification could be issued is if the parent is at a different job, making less than the position they had when the original child support order was issued. If there has not been a substantial change, it is unlikely the court will issue a modification.
If you are considering filing for modification, it is best to do it before you file for bankruptcy. Once the bankruptcy has been discharged, it is unlikely the court would approve the modification since all of your debt has now been erased.