Collecting Child Support from a Bankrupt Debtor, Part One

by Dana Wilkinson, Attorney at Law

July 11, 2007

To a parent who has been trying to collect past-due child support, a bankruptcy notice from the child support debtor is probably the last thing you want to see. If you are struggling to collect a support obligation, it is important to recognize what a bankruptcy will and will not do. If you’re struggling to pay a child support obligation, you need the same information. A bankruptcy filing will not prevent the collection of child support; it may actually help the recipient collect It may also help the child support debtor free up income to pay the obligation.

Below, I’ll provide some information about how Chapter 7 impacts the collection of child support from a debtor in Chapter 7. In Part 2, we’ll look at how Chapter 13 affects support obligations.

Child support is not discharged by a bankruptcy filing. Period. In a Chapter 7 case, the obligation to pay child support (or alimony) passes through the bankruptcy unaffected. If there is an ongoing obligation to pay child support, the debtor is still obligated to make those payments, while the bankruptcy is going on, and after the bankruptcy. If there is a debt for back child support or alimony, the debtor still owes it, and it can still be collected. In fact, in a Chapter 7 case, any obligation that arises out of a domestic court order survives bankruptcy, and can be enforced. For example, if the domestic court order says that the debtor is to pay a joint credit card debt, the bankruptcy does not change that obligation.

For the most part, the bankruptcy should not affect collection of past due child support even while the bankruptcy is going on. Occasionally I run across a family court judge who is cautious enough to want an order from the bankruptcy court stating that such actions do not violate the bankruptcy stay. Because the law is pretty clear on this point, it is a fairly simple matter to get such an order from the bankruptcy court.

In addition, in the event that the trustee in a Chapter 7 case finds assets to administer (which doesn’t happen often) any claims for back alimony or child support get paid first–even before tax debts. In addition, there may be some information available to those trying to collect child support which may be useful. So, if you get that bankruptcy notice, don’t panic. Consult your lawyer (seriously), who may even send you to a bankruptcy lawyer. But, in a Chapter 7 case, you should be in good shape.

Next, Part Two will disscuss the affect of a Chapter 13 filing on alimony and child support debts.

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Däna (pronounced "Donna") Wilkinson, has been a bankruptcy lawyer in South Carolina for 20 years. She is certified as a bankruptcy specialist by the South Carolina Supreme Court.

Last modified: July 11, 2007