November 28, 2014

How are Child Support Arrears Treated in Chapter 13 Bankruptcy?

Chapter 13 bankruptcy and child support arrearagesChild support obligations – both on-going and arrears – cannot be discharged in bankruptcy.   However, even non-dischargeable debts like recent tax obligations, secured installments notes and (sometimes) student loans are regularly included in Chapter 13 repayment plans.

How are child support arrearage balances treated in Chapter 13?  Can the child support payer force a child support recipient to accept a 5 year payout of an arrearage balance?

The answer is “it depends.”  And often, the child support recipient (i.e. the custodial parent) gets to make the decision.

First, you should understand that Section 362(b)(2)(B) specifically excludes from the automatic stay any action to collect a “domestic support obligation.”  I read this to mean that if the child support payer files Chapter 13 bankruptcy, the automatic stay protection associated with a Chapter 13 filing should not stop a state court judge from hearing or ruling on a contempt action for collection of child support, nor should it stop a wage or bank account garnishment against the child support payer.

I would point out, however, that some state court judges will not assume anything about bankruptcy and will insist on an order from the Bankruptcy Judge before they will proceed with a child support collection case.

Thus, one option you have as a child support recipient is to continue with your child support collection efforts since the bankruptcy stay does not impact you.  However you may decide that the child support payer’s Chapter 13 offers certain advantages to you.   In some situations it may be in your interest to accept payments on the arrearage through the child support payer’s Chapter 13 plan.

Why would you want to accept arrearage payments through a Chapter 13 plan?  Often you will find that the child support payer’s plan offers you the best chance to get paid, while preserving your rights to collect using state court remedies if the plan fails.

Chapter 13 operates as a court supervised repayment plan.  The debtor submits a budget and a proposed plan.  Usually Chapter 13 payments are made through a payroll deduction, which means that there is a reliable source of funding.  Often Chapter 13 is used to stop a repossession or foreclosure, so the debtor often has a compelling reason to make his plan work.

Further, most Chapter 13 trustees will object to any plan when (1) the debtor is not current with on-going child support obligations and (2) the child support recipient objects to the proposed monthly plan distribution of the arrearage.

Therefore, the child support recipient has a great deal of leverage over the child support payer if the payer seeks to cure any arrearage in a Chapter 13.   If the recipient decides that Chapter 13 is a better option for collection than state court or child support collection agencies, then a reasonable Chapter 13 plan payout may be in all parties’ best interests.



About

Jonathan Ginsberg practices Social Security disability law in Atlanta, Georgia.  He represents clients in claims before the Social Security Administration.

Comments

  1. NEKITA COOLEY says:

    MY CHILDS FATHER HAS JUST RECENTLY BEEN APPROVED FOR SOCIAL SECURITY. I HAD A CHILD SUPPORT ORDER TO BE PAID 250.00 PER MONTH. BUT HE OWES ME A LITTLE OVER 45,000. THE DEPARTMENT OF HUMAN SERVICES HAS SUBMITTED AN AFFIVIDAVIT OF WHAT IS TO BE PAID, OUT OF THIS D.HS. ISONLY OWE 480.00 . I WANT TO KNOW AM I ENTITLED TO A LUMP SUM EVEN THOUGH MY CHILD IS 15 OR HOW WILL THIS BE HANDLED? ORWHAT CAN I DO TO ENSURE MY CHILD RECIEVES WHAT SHES ENTITLED TO BECAUSE SHE WANTS TO ATTEND COLLEGE.

  2. Im reciveing child support payment thru SSD What happens to payments after he dies. He owes a balance.

  3. Penny Furr says:

    Dear Sir,

    I mean you no disrespect but your information is incorrect on the law. Your statement that a chapter 13 filing should not stop a state court judge from ruling on a contempt motion on child support is incorrect. I just handled an appeal to the 11th Circuit for a client whose attorney believed exactly what you stated. My client was punished with a judgment for $60,000 for violation of the bankruptcy stay because her attorneys went forward with a contempt in the state court. The bankruptcy statute is tricky. It states that the stay does not apply “unless it impacts property of the estate”. In a chapter 13 the entire estate is involved. Therefore moving forward with the contempt would violate the bankruptcy stay.
    Regards, Penny Furr

  4. Jonathan Ginsberg says:

    @Penny Furr: Penny, are you saying that a state court judge ruled that a bankruptcy stay existed despite what appears to be clear language to the contrary at Bankruptcy Code Section 362(b)(2)(B)? I don’t doubt what you are saying but I would like to see the state court ruling – would you be willing to provide me with a copy of the ruling – I will redact any portion that I publish.

  5. Dear Jonathan, \

    The father filed for br and the state court went forward with a contempt. The mother’s attorney read the br statute and believed that child support contempts could move forward even with a br. My client (the mother) was then found to have violated the br stay by the br court in the Southern District of Alabama. ( Russell v. Caffey).

    The statutes states that the contempt can move forward unless the property is property of the estate. In an 11 or 13 all property is usually property of the estate. (this is not something a nonbankruptcy attorney would know!) There is also a case out of So Florida ( I will try to locate the citation) where the court held that the contempt cannot move forward if a 13 is filed.

    The thing that was so annoying in my case to the 11th circuit is that the father (Caffey) had removed several pieces of real estate and put them in the name of his girlfriend to keep them out of the br estate. One of those properties was pledged for child support. The br judge entered a protective order so that property could not be used for child support.

    Interestingly, the 11th Cir, ruled against my client and asked that the opinion not be reported.

    I would love to talk to you about this.

    Penny Furr

  6. Dear Jonathan,

    Look at the Daniel Rodriguez case out of South Florida. They wrote him 3 letters regarding
    collection of child support while he was in a chapter 13. It was found to be a violation of the stay.

    The way the statute is written may cause a huge problem for people.

    Penny

  7. Shawna Callies says:

    This was helpful, and I wish I would have read sooner. I had no choice, the Texas Att. Gen. Child Support Div. kept me out of the loop on the whole thing. My question is now that I am on payments my regular support before the Bankruptcy was over half arrearage and no is gone. This was the TAG idea to help him get out of the hole faster. Now that I want to modify because he is making more money and what is the support now won’t feed my child for a week, Texas is saying they can’t take any action to modify for 5 years.. Is this correct?

  8. My son is in prison for 14 years. He has a teenage daughter that the wife left with and disappeared with child, prior to his incarceration and incarcerated partly due to her, for he was so in love with her and found in bed with his best friend(Although he excepts full blame). He does not know where the child (teenager)is and I have tried endlessly to find her and be part of her life.My grandaughter, being a teenager,I found on fb recently & she was thrilled to come see me. I told her she had to ask her family first & let them know. I was immediatelly blocked. He has more than paid his debt to society. He has not seen his daughter since she was about 1 yr. old. Been in prison since his 20’s. He is not astute to the outside world, prison has been his only life for 10 years. He does not have to get out of prison,to see he cannot get a job for he cannot get a drivers license, his wages are garnished, etc.. Feel it will be hard enough for him to get on his feet and this would be a set back. I know he will have a hard time, even though he has educated himself inside. I talk to him and even though he always been very smart, I can see he doesn’t know the reality of the real world. Is there a bankruptsy chapter he can file to keep from starting out and trying to get on his feet and not have the state take all the money from his wages, IF THERE IS BACK SUPPORT DUE! I would like to help my grandaughter, if I am permitted to see her at some point. And I would like to see my son be the man he should be and wants to be when he is released. I know the kind of man he is,even the officers at (recently in work camp)correctional institution praise what a good guy he is when I visit. And I watch. When I am visiting, I have never seen an officer, except to scold, talk to an inmate. They go out of there way to be nice to me and my son. I really believe he will want to see his daughter and in time do right by her. Sorry, I didn’t mean to be a letter. If there is some type of chapter he can file for bankruptsy, please help me find. Sincerely, Barbara

  9. Denise Arancibia says:

    Hello, Mr. Ginsberg. I read your March 5, 2011 Article, ‘How are Child Support Arrears Treated in Chapter 13 Bankruptcy?’ It was very informative, thank you. I have just been informed by my Enforcement Agent (State of NV), however, that I could not collect on the back child support of approximately $50K. Is this correct? How can that be? The docs I received from my ex’s bankruptcy attorney indicated that I was a creditor, but there’s no mention of back child support. In fact, that was confirmed when I contacted his attorney. Also, as of this date, NV’s child support division has not been advised of my ex’s bankruptcy filings. What do I do now? Do I file a Proof of Claim with the bankruptcy court? Do I provide copies to the child support division? I’m at a loss, and I’m very upset. Also, what about the monies I get on a monthly basis? He recently took me back to court to modify those, too. Will garnishment of those funds cease? Is there a way to make sure I continue to receive monthly garnishments? Thank you so much for your time.

  10. Lanay Brooks says:

    Father of my child is disable.He is in jail for a month.Does he looses his benefits for the time he is in jail ? How about his dependant child ?

  11. I am currently living in ga. My wifes ex is behind several thousands of dollars in previously court ordered child support and other medical bills and loan payments. We just received notice, via mail, that he is filling chapter 13 on all child support past and future. Please reply as fast as you can for advice on how to object to this and receive past money owed.

  12. Rebeca De La Rosa says:

    My exhusband has filed chapter 13, his in arrears for 11,000, his already gone to court for the bankruptcy, how long will it take before i see any kind of child support payment and how do they decide how much the payments will be?

  13. Barbara, bankruptcy can get rid of debt, but not child support debt. I don’t see how bankruptcy would help your son. When he is released, he won’t have any financial debt. As far as visitation, you and/or your son will most likely need to hire a lawyer who can argue to the family court judge that it is in the best interest of the child to see her father and/or grandmother. Timing could also be important – in other words, your son may want to establish himself with a job and roots in the community before pursuing visitation. Good luck.

  14. R.W.Parrish says:

    I am the payor in court order for child support. I paid my obligation for many years until an accident at work (construction) ultimately made me unable to work. Although I still had a child support obligation my ex-wife never sought any kind of action towards me to get back on track with my obligation. Eight years had passed and one day I received a letter from the Social Security Administration sent me a letter stating that they were going to start taking $800.00 a month from my $1260.00 a month SSDI. They problem I am having is, with this deduction I have used up all my savings and now am unable to pay my monthly obligation to the Assisted Living facility where I reside. Isn’t there maybe some statute of limitations in which a person has a cetain amount of time to collect arrearages? I am now about to face eviction proceedings because of my inability to pay for my services here at the Assisted Living facility. I could sure use some help or suggestions. Thank You for your time.

  15. S. Ratcliff says:

    I know my husbands child support arrears in included in my chp 13 plan. When I got laid off, I had to get a modification. The child support sent a wage garnishment to my husbands job to garnish at 50% so I need to know can they do this? I mean it seems they can do what they want, but it defeats the purpose to be included in the Chapter 13 if they do not have to adhere to it.

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