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Can Child Support be Discharged in Bankruptcy?

Say that after a divorce, the judge has ordered one of the spouses to pay child support to the other. It may be possible for the paying spouse to miss payments and end up having a lot of back child support. It may also be possible that the paying spouse has may file for bankruptcy. The immediate question upon learning their ex-spouse has filed bankruptcy will they still be receiving their child support as ordered in the divorce. It is important to note, this discussion also applies to parents of children that were never married – but are still subject to a child support order.

According to bankruptcy law, obligations that are considered to be domestic support like child support or alimony receive special treatment. If the paying spouse owes the other spouse child support, they cannot be liberated from that obligation by simply filing for bankruptcy. However, how the other spouse will receive the back child support depends on what chapter the paying spouse used to file for bankruptcy.

Alimony and Child Support Cannot be Discharged in Bankruptcy
It is not very common knowledge, but simply filing for bankruptcy will not eliminate all of the filer’s debt, some of them are classified as too important to be discharged. These debts are called non-dischargeable debts. Alimony and child support are among those debts that are considered too important to be eliminated, hence, they are non-dischargeable by bankruptcy.

Continuing Child Support Payments During Bankruptcy
Simply by filing for bankruptcy does not mean that the spouse that has to pay for child support is released from that obligation. No matter what chapter the filer filed for, they must continue making their ongoing child support payments. Furthermore, before the filer can be formally discharged of their debt in a Chapter 13 bankruptcy, they must prove to the court that they are current on their financial obligations.

Owed Child Support During a Chapter 7 Bankruptcy
Besides child support being a non-dischargeable debt, it is also considered a priority in bankruptcy. Furthermore, child support and alimony have the highest priority amongst any kind of debt. This means that if there are any assets that are liquidated, the spouse that is receiving any child support or alimony will, they will be among the first to receive payment. However, it is good to know that to be able for the receiving spouse to receive their payment, you may want to file a proof of claim with the court. A proof of claim is a pleading filed with the bankruptcy court documenting the amount of child support or alimony that is owed to them by the person that filed bankruptcy. If there are no assets to be liquidated, the receiving spouse will not be able to get payment directly from the bankruptcy court. However that does not mean their back child support will be eliminated / discharged in the bankruptcy case.

Owed Child Support During a Chapter 13 Bankruptcy
If the spouse that owes alimony or child support and they file for a Chapter 13 bankruptcy, they have to pay back all of their debts through a repayment plan, meaning that some part of their monthly payments will be used to satisfy their domestic support obligations. They must pay off all their debt and be able to show proof that they are up to date on all their support payments before they be discharged through chapter 13.