Can Bankruptcy Help Me with Past Due Child Support?

Posted on May 01, 2015 By Ed Woods

Attorney Ed WoodsYou may have heard or even been told that bankruptcy doesn’t “apply to” past due child support. So, you may be thinking that bankruptcy can’t help at all when it comes to past due child support. While it is true that you cannot “discharge”, i.e., wipe out, child support obligations in a bankruptcy, a bankruptcy case can still be the most effective way to deal with past due child support.

As with all debt problems, the worst thing you can possibly do in the face of a past due child support balance is to ignore the problem. Ignoring the problem is a sure fire strategy for making it worse. DO NOT delude yourself into thinking that this type problem will go away on its own. It won’t. What it will do is continue to grow, with interest. In Mississippi, past due child support CANNOT be forgiven. No court has that authority. And, past due child support can interfere with your ability to earn income. For example, Mississippi law allows your driver’s license to be suspended for past due child support. If you get caught driving on a suspended license, you’re going to jail. You’ll have to pay hefty fines plus court costs. And that doesn’t count what you may have to pay to retain good counsel to help you deal with the mess.

Past due child support may lead to wage garnishments. Depending on how many children you are supporting and how far in arrears you are on your child support payments, up to 60% of your disposable earnings may be garnished. That can put a serious dent in your ability to keep the lights on or put food on your table.

Past due child support may lead to your being held in contempt of court for not paying the support as ordered. This involves you being sued and having to hire an attorney to defend yourself. These situations almost always carry a substantial risk of you being cited for contempt of court and possibly jailed until you meet certain requirements; usually making a portion of the past due payments.

If you are faced with this problem it is, as noted above, very serious. However, it can be effectively handled to keep you out of legal troubles and possible incarceration. The bankruptcy law classifies child support payments as a “domestic support obligation”. And, under Section 523(a)(5) of the bankruptcy law, such obligations are not subject to discharge. This simply means that a bankruptcy case will not wipe these obligations out and you still owe them after your case is over.

So, how can the bankruptcy law help? One very effective solution can be a petition under Chapter 13 of the Bankruptcy Code. For example, suppose you owe $400.00 per month in child support and you’ve fallen behind on your payments because you were unemployed for a while. However, you’ve just started working again and you are now having the current support of $400.00 per month being deducted from your paycheck. But, you’re starting to get threats of being dragged back into court if you don’t catch up; however, there’s no way you can get caught up all at once. Let’s assume that you are $2,400.00 behind.

In a Chapter 13 case, you can usually leave the $400.00 payroll deduction in place so you don’t fall behind any further. As for the $2,400.00 you are behind, you can pay this through the Chapter 13 debt consolidation plan you will file with the court. These plans can last up to 60 months over which time you can get the $2,400.00 paid off. So, for the next five years you pay $440.00 per month to stay current on your support and pay off the past due balance. Further, while you are in your plan (and current on your payments), you are fully protected from any other legal proceedings designed to collect the past due support.

And, as an added benefit, not only does your Chapter 13 debt consolidation plan help you resolve your child support problem, it also resolves all (or nearly all) of your other debt issues too. When you’re done with your plan, credit card debts, medical bills, car notes, past due mortgage balances, pay day loans, past due taxes, and most all other types of debt that you have is also gone. You emerge free of these debts. Please note that if you have an ongoing mortgage payment, student loans (to the extent not paid in your plan), or ongoing child support payments, you’ll still have to pay these debts after your case is over.

A couple of other points are worth mentioning. First, the bankruptcy court will not reduce the amount of your past due support. You must pay what you legitimately owe. Second, the bankruptcy court will not alter the amount of your current child support no matter what it is in relation to your current income. So, if your income has gone down since the amount of your child support was initially established, you will need to either go back and petition the court that ordered your child support in the first place or seek that relief in another court with proper jurisdiction. In any event, it will not be the bankruptcy court.

The bottom line is that if you are struggling with past due child support and maybe even threats of prosecution or contempt of court, you can get this situation under control. A consultation with an experienced debt relief attorney can narrow and refine your options. You can get an estimate of what a Chapter 13 plan payment in your case would be. This will be of great benefit to you as you identify your best options. Our attorneys offer a free, initial consultation to do just that.