October 27, 2011 Leave a comment
Unfortunately, many people ordered to pay child support have had to file for bankruptcy. We see this occasionally, and while sometimes that person is attempting to avoid their child support obligation, many times the person truly is experiencing hard times. Even more unfortunately, that person may believe bankruptcy will stay, halt or eliminate their child support obligation – that is simply not the case. In fact, bankruptcy can make it easier for a person receiving child support to get paid.
To lay the argument out simply:
1) Child Support is seen as a domestic support obligation under the bankruptcy code – 11 U.S.C. 101(14A).
2) Domestic Support Obligations are not dischargeable through bankruptcy – 11 U.S.C. 523(a)(5).
3) In fact, the automatic stay associated with bankruptcy filings will not apply to collection of a domestic support obligation from property that is not part of the bankruptcy estate or with regard to a wage withholding order for future income- 11 U.S.C. 362(b)(2).
4) Finally, exempt property can be taken to satisfy domestic support obligations notwithstanding any State or Federal law to the contrary – 11 U.S.C. 522(c)(1).
What does this mean?
When a person (“debtor”) files for bankruptcy, they fill out certain schedules. Those schedules include all of their property, their income and where that income comes from. Because of (3) and (4), the person owed child support could look at those schedules, determine what the debtor is claiming is exempt, then file their Motion to Enforce Child Support. Texas is allows for a debtor to claim quite a bit of property as exempt, but the debtor must list it in the schedule, which the person owed child support can then show the Judge and simply request that property or that income to satisfy the child support obligation. While not a sure-fire way of getting that child support paid, looking through a debtor’s bankruptcy filing is a good start.