If I file bankruptcy will that discharge child support arrears?
Recently on our bankruptcy forum a user asked, “I have been divorced ten years. I am supposed to pay child support to my ex every month. Unfortunately, I was unable to do so for several months and I now owe her $10,000. I was wondering if there is a way to have my child support arrearages discharged. For example, if I file for Chapter 7 bankruptcy will those charges be discharged like other unsecured debts?”
What is Chapter 7 bankruptcy?
Chapter 7 bankruptcy allows certain qualifying debtors the ability to discharge certain types of unsecured debts. Assuming you qualify, if you decide to file Chapter 7 bankruptcy a trustee will be assigned to your case, take an inventory of all of your assets, and sell certain nonexempt assets to repay your creditors.
After the liquidation of your assets and the payment of creditors, unsecured debts which are dischargeable will be discharged, which means the creditors will no longer have the right to pursue collection of the debt.
Note: Certain assets will be considered exempt, which means they will be protected and cannot be liquidated. To determine what assets you can protect you can review your state’s bankruptcy laws and talk to a bankruptcy lawyer.
Debts Chapter 7 will not discharge
You are not the first person to ask whether or not child support in arrears can be discharged. Unfortunately, although child support is an unsecured debt, it is never discharged through bankruptcy. Forced payment of child support is in the best interest of your child, as well as the state. With this in mind, the states have not created any process which lets you avoid this repayment obligation.
Child support, however, is not the only debt not discharged in bankruptcy. Other debts which cannot be discharged through Chapter 7 bankruptcy include the following:
- Most student loans (unless debtor proves undue hardship)
- Debts which were not included on the debt schedules
- Recent state, federal and local taxes
- Spousal support
- Government instituted fines, penalties and restitution
- Certain court fees
- Debts created from DUI personal injury claims
- Debts owed to certain pension plans
- Debts generated from fraud
What can I do about my child support arrears?
So if bankruptcy is not an option for discharging your debt you may be wondering if there is any way to eliminate it. In fact, there is no way to avoid paying child support. If you are employed it’s likely that the state has already filed some type of wage garnishment and they are taking money from your weekly pay check.
Although you cannot discharge child support in arrears, however, that does not mean that there are not some steps you can take to improve your situation. For example, if your child support order was developed at a time when you had a higher paying job but your financial situation has now changed, you may be able to petition the court to amend the order. Although this will not get rid of child support debt which has already been incurred, it can help ensure that you will be able to meet your child support obligations in the future.
If child support in arrears or any of the debts listed above is the reason you are considering filing bankruptcy then bankruptcy is probably not the best option for you. In fact, in your specific example it might be better to contact your state’s child support collection agency and discuss a debt repayment plan that is viable given your current income.
The next step after that is to talk to your ex and discuss your options for amending the child support order. If she understands your financial situation has changed and sees that you are making a genuine effort to pay your debts you two might be able to work together to create a new plan. If not, you can still petition the court and allow them to make a ruling for your case.
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A mother does not have the right to withhold visitation if the father does not pay child support.