Child Support & Spousal Maintenance
The effect depends upon which chapter you file. A Chapter 7 will probably have no effect upon state court hearings to collect child support, but a Chapter 13 will probably stop the hearings, at least temporarily.
Creditors are stopped from collecting debt when you file a bankruptcy because of a section of the Bankruptcy code which stops, or stays, all creditor's collection activities including pending court actions. However, the code excludes actions to collect child support or spousal maintenance from the stay, unless the collection is from "property of the estate." [� 362(b)(2)(B)]
In Chapter 7, "property of the estate" refers to all of your possessions, money and interests you own at the time the case is filed. (This is the property which the trustee may take to pay your creditors.) Money which you earn after the case is filed is not property of the estate. Since the child support will probably be collected from your pay, there is no restriction on state court hearing.
In Chapter 13 even though you will keep your earnings (except for the plan payment), the code includes your earnings as property of the state. As a result, the state court hearing to collect child support is stayed, or stopped. [� 1306(a)(2)]
The court can remove stay to allow the collection of support or maintenance from wages. Whether the court will remove the stay may be hard to predict.
If the plan provides for full payment of the child support arrearage, with interest, the court may decide to leave the play in place as it did in In re Slater, 188 B.R. 852 (Bankr.E.D.Wash., Aug 18, 1995). Or, the court may decide that the plan does not adequately provide for the payment of support or maintenance payments and lift the stay to allow collection in the state court as was done in In re Pacana, 125 B.R. 19 (9th Cir.B.A.P.1991).
My husband fell behind in his payment of child support during a five year period when he was basically unemployed. He is now employed but not making as much money as he was when the child support was awarded. The children's mother is now working and off welfare. We filed Chapter 13 and are paying my husband's back child support in the plan. We were told that if we go to court to get the child support reduced, that the payment would be increased due to the amount owed in arrears. How is that possible with it is all included in the Chapter 13?
Child support is awarded by the family law court in state having jurisdiction (or authority) over the case, so you could conceivably have 50 different answers to your question. I will attempt to give you an idea of the principals involved, but you will have to talk with an attorney in your area that handles family law matters for the answer in your state.
The original award of child support is usually based on the needs of the child and the ability of the parent without custody to pay. State courts often adopt table showing a range of child support amounts for income levels of both parents and the number of children, but the court usually has the discretion to vary the award after taking other factors into consideration. Once the court has entered an award of child support it will ordinarily not change the amount of the support unless there is a change in circumstances. This could be a situation like the one you describe where the father's income has decreased and the mother's income has increased, in which you might expect the support to be reduced.
If the parent paying the child support is behind in support payments, the family law court might ordinarily order that he pay some additional amount on the back child support in addition to the regular child support. When this payment is added to the regular child support, the payment may very well be more than the child support was, even if the amount of future child support has been reduced because of a change in the parents' comparative income.
If your confirmed Chapter 13 plan provides for the exclusive payment of child support arrears by the plan, the family court should not order that child support arrears be added to the existing child support. However, it is conceivable that the family court still might not reduce the child support--or even might increase it--because the Chapter 13 has reduced the amount of money you have to pay toward your bills, and in consideration of the period of time that the children have done without support. [1-10-00]
This page was last revised: 09/18/04