03 Feb Child Support Delinquency Will Hold Up Chapter 13 Discharge
It is a real accomplishment to complete your Chapter 13 case. In an environment where jobs come and go, unexpected expenses can pop up and more than two-thirds of all Chapter 13 plans fail, anyone who fulfills the terms of his Chapter 13 plan should take pride in this milestone.
Be aware, however, that making trustee payments for five years may not be enough to get your Chapter 13 discharge. As I previously wrote on this blog, every Chapter 13 debtor must obtain a Financial Management certificate and submit through counsel a certificate of completion for this post-filing educational course. If you do not submit the certificate, your case will be closed without the issuance of a discharge thereby potentially leaving your exposed to post-bankruptcy collection actions. If you choose to ask the court to reopen your case so that you can file the financial management certificate you will incur additional time and cost.
A second possible hurdle arises from Bankruptcy Code Section 1328. This Code Section precludes the judge from issuing a discharge if you do not certify that all domestic support obligations that have come due during the pendency of your case have been paid. In the Northern District of Georgia, where I practice, every Chapter 13 debtor receives a Section 1328 certificate to complete as their case winds down.
If you state on your certificate that a domestic support (i.e. child support or alimony) was not paid, then the judge will have to hold a hearing to determine whether your failure to pay is beyond your control or not. If the judge finds that your failure to pay these domestic support obligations is not excusable, your case will close and you will not get your discharge.
Sometimes it can be tempting to ignore an issue if no one is saying anything and no pressure is being applied. In the case of child support in Chapter 13 you cannot ignore the obligation even if the custodial parent or child support enforcement is saying and doing nothing. Otherwise you could end up with a sterling five year payment history in your Chapter 13 but no order of discharge to show for your efforts.
by Jonathan Ginsberg, Ginsberg Law Offices
Jonathan Ginsberg, Esq.
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