If you or your ex files for bankruptcy in Ohio, what happens to child support and alimony payments? What if these payments are already in arrears? Is bankruptcy a way to escape making these payments?
The short answer is no – because the Bankruptcy Code prevents any support, such as alimony, or child support, from being discharged (eliminated) through filing for bankruptcy. While many other debts are dischargeable through bankruptcy, the obligation to pay support has a super priority under the Bankruptcy Code. Still, filing bankruptcy can provide advantages that may make it easier to come up with the money necessary to meet support obligations.
When you file for bankruptcy, you are protected from creditors and can get a fresh start that puts you in a position to better meet remaining debts. The experienced and compassionate Ohio bankruptcy attorneys at Fesenmyer Cousino Weinzimmer can help you recognize which debts may be discharged and determine what is the best way to deal with non-dischargeable debts, including child support and alimony. We offer a free consultation to discuss what debt-relief solutions will work best for you.
The most common types of personal bankruptcy are Chapter 7 and Chapter 13.
In general, Chapter 7 bankruptcy is good for people who have low incomes that don’t cover their debts. It is completed quickly, with qualifying debts such as credit card and medical bills discharged within a few months, but debtors will still be responsible for debts that are nondischargeable. In addition to child support and alimony, certain other debts related to divorce, some student loans, court restitution orders, criminal fines, and some taxes are non-dischargeable debts in Ohio.
Also, in Chapter 7 bankruptcy, property acquired after your filing date, including wages earned after filing, is not considered property of the bankruptcy estate. Therefore, child support creditors are free to go after this property during your bankruptcy.
Chapter 13 bankruptcy is usually best for those who have assets greater than the exemption amounts, a steady income, financial problems that are temporary, and who wish to repay some of their debt and still keep property after bankruptcy. Chapter 13 allows debtors to repay nondischargeable debts over a three- to five-year period, without the pressure of lawsuits, wage garnishment or creditor harassment.
Once a debtor files for either type of bankruptcy, there is an “automatic stay” that stops all foreclosures, garnishments, bank levies, and harassment by creditors. However, the automatic stay does not apply to the enforcement of the collection of child support or alimony.
If you file for bankruptcy, you must include the name of the person to whom you owe child support and spousal support as a creditor in your bankruptcy petition. The automatic stay does not stop child and spousal support proceedings, and you will continue to be liable for support that was previously ordered in state family court, just as if you had not filed bankruptcy.
If you do not pay these obligations and your ex-spouse files a motion to hold you in contempt for failure to pay, that proceeding will go forward. Your ex or the county prosecutor’s office may file a motion to enforce these obligations while your bankruptcy case is open.
The Bankruptcy Code requires filers to remain “current” on support obligations while their bankruptcy case remains open.
This does not mean that all back support must be paid up on the date the bankruptcy petition is filed. “Current” means that, from the date the bankruptcy petition is filed until it is discharged, you cannot get behind on any support obligations. If you are already in arrears on the date you file your bankruptcy petition, you may not get further behind, and you must make all regular child support or spousal support payments due until you receive your bankruptcy discharge. If you are already current on support obligations on the date you file, you may not have any arrearages occur until you receive your bankruptcy discharge.
If you do not remain current on support obligations, you will not receive a discharge of your dischargeable debts and, therefore, you will not benefit from bankruptcy.
If a person cannot make support payments, the Child Support Enforcement Act of 1984 states the district or state attorneys must help a parent collect child support. In addition, Federal laws allow tax refunds to be intercepted to enforce child support orders, and there is the possibility of wage attachments or seizure of property.
However, if someone’s financial situation has changed to the point where they can no longer meet obligations, they may file a motion to modify the order of support. However, a parent is still responsible for the full amount of back child support. In addition, debts incurred for a child’s upbringing and welfare, such as medical bills for a child, are also not dischargeable in bankruptcy.
While you must continue to pay child and spousal support during bankruptcy, bankruptcy can still help by wiping out your other debts and freeing up more income to put toward required support. Since each person’s financial problems are unique, it’s important to assess your individual situation to decide whether bankruptcy will be the right solution for you. The skilled Ohio debt-relief lawyers at Fesenmyer Cousino Weinzimmer are dedicated to helping you through the maze of personal bankruptcy so you can obtain financial freedom. We offer a free initial consultation and careful evaluation of your individual situation to help point you in the right direction.
During your consultation, we will evaluate your entire financial situation, make sure you are aware of all your options, and help you decide on the path to a brighter future. We understand what you are going through and will walk you through the process.
Delaying can only worsen your situation, so call the Ohio bankruptcy attorneys at Fesenmyer Cousino Weinzimmer today! Call one of our conveniently located office branches at 614-228-4435 (Columbus), 937-222-7472 (Dayton), or 877-654-5297 (Cincinnati) or email for your free consultation so we can determine what debt relief solutions will work best for you.
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