QUESTION: “Can my former spouse file for bankruptcy to avoid paying child support?”
Your ex is upset about paying child support. He tried moving. Then he refused to pay. Now, he says he will file bankruptcy. Can filing bankruptcy prevent him from paying child support?
In the U.S., both custodial and non-custodial parents are obligated to financially support their children. The federal Bankruptcy Abuse Prevention and Consumer Act was passed in 2005. The Act prevents a parent from using bankruptcy in order to avoid paying child support. No matter how much debt a parent has, child support is never dischargeable in bankruptcy. Support payments are considered priority claims, and your ex will be required to continue all court-ordered support payments.
When a person files for bankruptcy, his debts are given an “automatic stay”. This means that credit card companies, banks and others who are owed money must immediately stop all collection efforts. The automatic stay applies to foreclosures, wage garnishments, and collection calls. It does not apply to Pennsylvania child support. Your ex must continue to pay any child support owed. The courts may continue any wage garnishment or other efforts to collect any back child support that is owed.
Chapter 7 Bankruptcy
When a person files a Chapter 7 bankruptcy, his assets are sold to pay his debts. In most cases, the remaining debts are discharged. However, unpaid or past due child support cannot be discharged. Your ex will still have to pay this debt.
Chapter 13 Bankruptcy
Chapter 13 bankruptcy is used when the person filing bankruptcy has a regular income. The court adjusts the debts and creates a repayment plan. A repayment plan must include all court-ordered support payments and a plan for paying any past due child support.
You don’t need to do anything.
The law is on your side. If your ex files bankruptcy, the courts will make sure that your children get the child support they are owed. However, you may need help if the bankruptcy is just another threat that your ex is using to avoid paying past due support. If you have questions about past due child support payments, please contact Petrelli Previtera Schimmel. Our Philadelphia child support attorneys will be happy to schedule an appointment. Call us at 215-523-6900.