It’s very common for noncustodial parents to get into situations where they can’t afford their monthly child support obligations. All too often, a parent will lose their job or have their hours cut way back and they’ll fall behind on their child support payments. As time goes by, such a parent may owe thousands of dollars in back child support.
As family law attorneys, we often have clients ask us if they can include their child support arrears in Chapter 7 and Chapter 13 bankruptcies. Unfortunately, the answer is “No, child support cannot be discharged in bankruptcy.” Why? Because lawmakers felt that child support was just too important to discharge in bankruptcy. They felt that it was in the public’s best interest to make it so debtors could not discharge it in bankruptcy.
Child Support is a Priority Debt
Child support for bankruptcy purposes is considered a “priority debt.” So, if you were to file Chapter 13, the “debt reorganization bankruptcy,” even though you couldn’t discharge child support, it could affect how much money is paid toward non-priority debts, such as credit cards. You see, child support is the #1 priority debt, so it’s a priority above all other priority debts.
If you have only so much disposable income to pay off debts each month and you enter into a Chapter 13 repayment plan, your child support debt would be given first priority, which means you may be able to pay less on non-priority debts, such as credit cards. As a parent, you’d probably much rather see your money go to your children than credit card companies.
In other words, if you have child support arrears and you file Chapter 13, more of your money can be used toward the child support debt, while the amount you have to pay toward your credit cards may be reduced.
Note: If you do file Chapter 13, you cannot receive a discharge until you are current on all of your child support payments. So, if you skip any child support payments during your repayment plan, you’ll have to come current before your bankruptcy can be discharged.
Child Support Modifications
If for any reason you cannot afford your child support payments, we urge you to contact our firm so we can help you petition the court for a downward modification. Child support is not retroactive, so it will continue to accrue until the court changes the order.
If you have experienced a significant change in financial circumstances due to COVID-19, unemployment, disability, incarceration, etc., it’s critical that you act fast before the local child support agency starts taking enforcement measures against you.