Can Filing for Bankruptcy Cause a Modification of Child Support?
There are two essential factors to be aware of when considering filing bankruptcy in how that may impact a Family Law proceeding:
- Filing bankruptcy during the pendency of a Family Law dissolution, pre-judgment, will place a hold on the entirety of the dissolution proceeding. It is essential to be aware that a dissolution will pause if a bankruptcy proceeding is initiated. If your child support orders have been made within your dissolution proceeding, please consider this mandatory hold before proceeding with bankruptcy.
- There is no “stay” to a child support order. While the payments may not be withdrawn from your paycheck, they are still due and payable. If you do not pay the child support owed, an arrearage (a past-due balance) will accrue and can incur interest at the current legal rate of 10% per annum.
Are you facing financial hardship and are considering filing for bankruptcy? You might wonder how this impacts your child support obligations. At the Law Office of Joyce Holcomb, we know how difficult it can be to get through bankruptcy and child support. Let’s break down the key points to help you understand what to expect.
Child Support is a Non-Dischargeable Debt
First and foremost, it is important to understand that child support is considered a non-dischargeable debt in bankruptcy. This means filing for bankruptcy won’t erase your existing child support obligation or past-due payments (arrears).
Why Is Child Support Treated Differently?
Unlike credit card debt or medical bills, child support is seen as essential for the well-being of your child. The court prioritizes ensuring a child’s financial needs are met, regardless of your financial situation.
So, Does Bankruptcy Affect Child Support at All?
While it does not directly modify your child support payments, bankruptcy can impact child support in a few ways:
- Automatic stay: When you file for bankruptcy, an “automatic stay” goes into effect. This temporarily halts most collection efforts from creditors, including child support agencies. However, the stay on collections doesn’t stop the accrual of child support. As indicated above, Child Support is still due and payable and a failure to pay voluntarily will result in an arrearage which can incur interest. Thus, you will still be responsible for the payments due during the bankruptcy process.
- Chapter 7 bankruptcy: This type of bankruptcy aims for a fresh financial start by liquidating some assets to repay creditors. However, the automatic stay (temporary halt on collection actions) included in Chapter 7 does not apply to child support. You will still be responsible for making your ongoing child support payments.
- Chapter 13 bankruptcy: This form of bankruptcy involves creating a repayment plan to pay back creditors over a three to five-year period. While Chapter 13 can help manage other debts, your child support obligation remains a priority debt and must be paid in full through your repayment plan. Any existing arrears will also need to be addressed within the plan.
Can You Still Modify Child Support After Filing for Bankruptcy?
You might still be able to modify your child support payments even after filing for bankruptcy. Here’s what you need to consider:
- Job loss or income reduction: A common reason people file for bankruptcy is due to significant financial hardship, such as job loss or a substantial decrease in income. If bankruptcy was motivated by such a change in financial circumstances, this same change could potentially justify a downward modification of child support payments. During bankruptcy proceedings, if evidence shows the paying parent legitimately cannot afford the current child support amount due to diminished income or employment issues, the court may grant a modification request to reduce the payment amount. However, it is not guaranteed – the court will analyze the specifics of each case.
- Change in number of children: If a child support order covers multiple children, once a child becomes an adult, the number of children included in the calculation changes. California child support orders are enforceable until a minor child turns 18. However, if your child is still in high school, the order is enforceable until graduation from high school or when your child turns 19, whichever comes first. This can impact the total amount of child support owed. If the oldest child ages out and no longer qualifies shortly after a bankruptcy filing, the paying parent may be able to seek a child support modification based on the changed number of children receiving support. The court would then reevaluate the appropriate payment amount for the remaining children.
Steps for Modifying Child Support
Here is a general overview of the process for modifying child support:
- Gather documentation: Compile documents proving your change in financial circumstances, like pay stubs, tax returns, or medical bills.
- Consult an attorney: An experienced family law attorney in San Bernardino can advise you on your eligibility for modification and help you navigate the legal process.
- File a modification petition: Your attorney will draft and file a Request for Order with the court seeking a modification of your child support order.
- Hearing and order: A hearing will be scheduled where you and the other parent present your arguments to the judge. The judge will then issue a ruling on whether or not to modify the child support amount.
Seek Legal Advice
If you are considering filing for bankruptcy and have questions about how it might affect your child support obligations, do not hesitate to contact the Law Office of Joyce Holcomb by calling (909) 587-6475 today. We’ll provide a personalized consultation to discuss your situation and explore the available options. Let us help you navigate these complexities and find the best solution for your family. Child support is vital for your child’s well-being, and we’re here to help you ensure your obligations are met while protecting your legal rights.
