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Archive for the ‘Child And Spousal Support’ Category

Conditions for Stopping Support Collections in Chapter 13

January 19th, 2020 at 8:00 am

Chapter 13 immediately stops the collection of past-due child or spousal support. But to keep that protection you must meet some conditions.  


Last week we showed how Chapter 13 stops the collection of unpaid child and spousal support, while Chapter 7 doesn’t. But we ended by emphasizing that anyone can quickly lose this huge benefit of Chapter 13 “adjustment of debts”. Avoiding this requires strictly complying with some conditions. These conditions are arguably sensible ones. But you need to know and understand them so you don’t lose this crucial Chapter 13 benefit. Because these conditions are so important we focus today’s entire blog post on them.

Ongoing Child and Spousal Support

But before we get to these conditions we need to make a strong point. We’re talking here about child and/or spousal support that is unpaid, past-due, at the time of the bankruptcy filing. This past-due support is different from ongoing support. 

Ongoing support is the support you need to keep paying, usually on a monthly basis, after your bankruptcy lawyer files your bankruptcy case. Past-due support is any amount of support that you’re behind on as of that filing date.  Ongoing support is the support due after that filing date.

Filing bankruptcy does NOT stop the collection of any ongoing support, under either Chapter 7 or Chapter 13. The “automatic stay” that protects you from creditor collections does not apply. (See Section 362(b)(2)(B) of the U.S. Bankruptcy Code—where ongoing support is called “domestic support obligation.”) So, if you are paying support by direct payments, you need to keep paying those after filing bankruptcy.  If you are paying through a payroll deduction or by garnishment, those should continue. You can only change those forward-looking payments through the divorce court which ordered them.

Chapter 13 only stops the collection of past-due support—which, again, Chapter 7 does not. (Past-due support is also sometimes called support arrears or support arrearage.) So the conditions we discuss now are ones you need to meet to stop the collection of past-due support.

Inform Your Collector of Support

Your bankruptcy lawyer’s Chapter 13 filing will immediately stop the collection of past-due support.  This does assume that either you or your lawyer informs your ex-spouse or the support enforcement agency about your Chapter 13 filing. The automatic stay applies at the moment of filing, but the creditor needs to know about it to be able to comply. Coordinate this with your lawyer.

Most support enforcement agencies understand this special power of Chapter 13 and will comply immediately. Although sometimes it may take some lawyerly persuasion.

Ex-spouses are more likely under the misimpression that your Chapter 13 filing has no effect whatsoever on your support obligation. He or she probably has never heard about this special benefit of Chapter 13 for past-due support. If so, your lawyer will likely contact him or her, or his or her lawyer if there is one, to inform him or her about the law.  

The Conditions to Avoid Collection of Past-Due Support

Once the automatic stay stops collection of past-due support, you’ll lose this benefit if you don’t maintain the following conditions:

1) keep current on your ongoing support

2) show in your Chapter 13 payment plan how you will pay off all the support arrearage during the 3–to-5-year life of the plan

3) consistently make your Chapter 13 plan payments so that you are in fact making continued progress towards paying off the past-due support

4) finish your Chapter 13 case successfully, which includes paying off the entire past-due support

Let’s look at these one by one.

1) Keep Current on Ongoing Support

Assuming you continue to owe ongoing support, you absolutely must keep paying it as long as you are obligated to. Otherwise you’d be going financially backwards instead of forwards. You’d be called on it by the support enforcement agency or your ex-spouse. The very likely result would be that you’d lose the automatic stay protection against collection of the past-due support.

Plus you need to be very strict on the timing. You have to pay the monthly payments precisely by the due dates. Otherwise there’s a good chance that your ex-spouse/support enforcement will inform the bankruptcy court and ask permission to resume collection.

In particular be fully aware of the first support payment due after your Chapter 13 case filing date. For example, if your case is filed on January 25 and your monthly support payments are due on the first of every month, you need to make that first after-filing support payment by February 1. Talk with your bankruptcy lawyer about the timing of your Chapter 13 filing so that you have the funds to pay that first support payment.            

2) Payment Plan Includes Planned Pay-off

Bankruptcy law requires you to pay off all your past-due support during the 3–to-5-year life of the plan. Your Chapter 13 lawyer will make the necessary calculations to show how you will so so. Your monthly plan payments will be based on what you can afford to pay to all of your creditors. Incorporated into those monthly payments is money that will go to pay off the past -due support. You and your lawyer have to show that these plan payments are enough to accomplish this.

Otherwise your ex-spouse/support enforcement agency can object to the plan. He/she/it could also ask for permission to resume collections because the plan would not catch up on the past-due support.

3) Make ALL Chapter 13 Plan Payments 

Your Chapter 13 plan not only has to pencil out correctly, but you also must pay the plan payments timely. Otherwise you’re not doing what you agreed to do in the court-approved plan.  Paying the plan payments on time shows that you are actually making continued progress towards paying off the past-due support.

If you got late on the plan payments, your Chapter 13 trustee could ask that your case get thrown out. (The trustee is the person you pay your plan payments to, and who then pays your creditors.) Or any creditor—including your ex-spouse/support enforcement agency—could do the same. Or could just ask for permission to resume collection.

4) Finish Your Chapter 13 Case

So if you have a good payment plan, and you make all the payments, you’ll eventually complete it successfully. (Your plan very likely has some other requirements and this assumes you comply with them as well.) When you complete your plan, you will have paid off the entire past-due support. So it’s really important that you get all the way to the end of your Chapter 13 case successfully.

 

Unpaid Child and Spousal Support in Chapter 13

January 13th, 2020 at 8:00 am

Chapter 13 DOES stop the collection of unpaid child or spousal support from your after-filing income and other assets. Chapter 7 does NOT.    

Last week we discussed situations in which Chapter 7 would help if you’re behind on child or spousal support payments. We made clear that Chapter 7 “straight bankruptcy” provides only limited help. Mostly it gives you relief from your other debts so that you can concentrate on catching up on support.  Chapter 13 “adjustment of debts” is a much more powerful option when Chapter 7 is not enough.

The Main Benefits of Chapter 13 When Behind on Support

Chapter 13 takes much, much longer than Chapter 7, and is generally more expensive. But it provides some remarkable benefits compared to Chapter 7. These benefits can make the longer time and greater expense of Chapter 13 more than worthwhile. The main benefits of Chapter 13 are that:

1) Filing Chapter 13 immediately stops the collection of unpaid child or spousal support. Chapter 7 does not.

2) Chapter 13 gives you a relatively flexible and protected way to catch up on the support. With Chapter 7 you have to make your own payment arrangements, without any protection or much leverage.

Basically, have a serious conversation with your bankruptcy lawyer about Chapter 13 if you need these significant benefits.

How Does Chapter 13 Stop the Collection of Unpaid Support?

Chapter 7 is a very straightforward kind of bankruptcy. It focuses on a point in time: the moment your bankruptcy lawyer files your Chapter 7 case. Your case essentially imagines your financial life frozen in time at that moment, including your debts and assets, income and expenses, and such.

Chapter 13 also cares a lot about your financial life at the moment of filing. But it also takes a longer view—the next 3 to 5 years of your court-approved payment plan. In particular, Chapter 13 is designed to protect you during that period of time from your ongoing creditors.

Chapter 7 mostly just writes off (“discharges”) certain debts and does not discharge others. It leaves you on your own to deal with those debts you still owe, such as support.

In contrast, in Chapter 13 the protection from creditors—the “automatic stay”—can last the full 3-to-5 years.  Specifically regarding spousal and child support owed at the time of filing, the automatic stay protects your employment income earned after the filing. This means that as of your filing date your paycheck is protected from wage garnishment or other kinds of forced payment.

Why Doesn’t This Happen under Chapter 13 But Not 7?

Here’s the legal answer. (You can skip this section if you don’t need this level of detail.)

The pertinent federal bankruptcy statute states that the automatic stay does not stop the collection of support out of “property that is not property of the [bankruptcy] estate.” See Subsection 362(b)(2)(B) of the U.S. Bankruptcy Code.  This means that a bankruptcy filing does stop the collection from property that is “property of the bankruptcy estate.”

In a Chapter 7 case the bankruptcy estate is essentially everything you own at the moment of filing the case. See Subsection 541 of the Bankruptcy Code on “Property of the estate” generally. This does not include what you earn and assets you acquire after that moment. Since those after-filing earnings and assets are not “property of the estate,” they can be targeted for support collection.

Chapter 13 is different for a simple reason: “the estate” does include after-filing earnings and assets. Only under Chapter 13 the estate includes “earnings from services performed by the debtor after the commencement of the case.” See Subsection 1306(a)(2).

This means that the automatic stay legally prevents your ex-spouse or support enforcement agency from continuing or starting to collect on your unpaid child or spousal support you’re your after-filing earnings the moment your bankruptcy lawyer files your Chapter 13 case. This is true even though a Chapter 7 filing would have absolutely no such effect.

This Chapter 13 Protection Comes with Important Conditions

We said that the automatic stay can last the entire 3-to-5-year period of your Chapter 13 payment plan. But especially when it comes to unpaid support that protection comes with some conditions.

Why are there conditions? Imagine the example of a vehicle loan. You want to keep the vehicle and prevent your lender from repossessing it. The automatic stay can protect your vehicle under Chapter 13 during the entire length of the case. But you have to meet some reasonable conditions like making payments and keeping the vehicle insured. If you don’t, the creditor can get the court to exclude the debt from being covered by the automatic stay. It can get permission to repossess your vehicle after all.

It’s similar with child and spousal support debt. Here the conditions are very time sensitive and are often enforced very strictly. Being able to stop support collection is a huge benefit of Chapter 13. It may even be a major reason for choosing this more time-consuming option. You don’t want to lose this benefit because you didn’t clearly understand and comply with the conditions.

Because of how important these conditions are, we’ll dedicate all of next week’s blog post to them.

 

Unpaid Child and Spousal Support in Chapter 7

January 6th, 2020 at 8:00 am

Chapter 7 does not stop the collection of child or spousal support, nor provide any procedure to pay the support. It may still help enough.  


If you are behind on child or spousal support payments Chapter 7 may or may not be a good solution.

Chapter 7 “straight bankruptcy” is the most common type of consumer bankruptcy case.  It is more likely to be a sensible solution if 1) the support isn’t being collected aggressively and 2) you don’t owe terribly much. Why? Because:

1) Filing Chapter 7 does not stop collection of unpaid child or spousal support. Chapter 13 can.

2) Chapter 7 does not give you a procedure for catching up on the support. Chapter 13 “adjustment of debts” does so.

So why would you file a Chapter 7 bankruptcy if you were behind on support?

Filing Chapter 7 When Owing Support

Chapter 7 is usually the most straightforward type of bankruptcy. A case lasts only about 4 months from when your bankruptcy lawyer files it to when it’s completed. A Chapter 13 case involves a formal payment plan that almost always takes 3 to 5 years to finish.

As mentioned above Chapter 13 can stop the immediate collection of unpaid support, and give you time to catch up.

The much quicker Chapter 7 makes sense if you don’t need these kinds of help.

If you stopped paying the debts that Chapter 7 would discharge, could you quickly catch up on support? Would your ex-spouse be willing to accept monthly catch-up payments at an amount you could afford? Or if the debt is being collected by a support enforcement agency, would it accept such voluntary payments? Could you reliably make such payments, while presumably keeping current on the ongoing monthly support?

If you have a feasible way along these lines to catch up on your support obligation during and after your Chapter 7 case, then it may well be your best option.

Other Advantages and Disadvantages of Chapter 13

But you and your bankruptcy lawyer will discuss two other considerations revolving around your other debts.  Chapter 7 and Chapter 13 deal with debts quite differently.

The first consideration is about debts secured by your assets or other ones that you must pay. Secured debts include home mortgages, vehicle loans, and any others with a lien on anything you own. Debts you must pay—besides support—include recent income tax debts. Chapter 13 often handles these kinds of debts much better than Chapter 7. Without getting into the details here, Chapter 13 protects you while you pay such special debts as your budget allows. If you have such debts, how Chapter 13 helps with those may be reason enough to choose that option. Or this, along with the benefits it gives you with unpaid support, may swing you in that direction.

The second consideration is about the rest of your debts—those that are neither secured nor ones you must pay.  These are your “general unsecured” debts. Usually you can discharge (legally write off) all or most of such debts in either Chapter 7 or 13. In most Chapter 7 cases you pay nothing on your general unsecured debts. However, In a Chapter 13 case you often pay a portion of these debts. Whether and how much you pay on your general unsecured debts depend on lots of factors. The biggest factors are your income and expenses and the amount of your special debts (secured and otherwise) that you are paying in full. So you need to weigh the benefits of Chapter 13 regarding your unpaid support and other special debts against the likelihood that you would be paying something instead of nothing on your general unsecured debts.

What Happens to Your Unpaid Child/Spousal Support Debts in a No-Asset Chapter 7 Case?

A “no-asset” Chapter 7 case is one in which everything you own is covered by property exemptions. Exemptions usually allow you to keep certain dollar values of assets in various categories. Most Chapter 7 cases are “no assets” ones. If yours is, you’re able to keep everything (with the exception of collateral you decide to surrender).

In a no-asset Chapter 7 case your bankruptcy trustee does not get any of your assets to liquidate and pay to any of your creditors. (That’s why it’s called “no asset.”) Your bankruptcy lawyer will tell you if yours is expected to be.

Since the trustee doesn’t collect any money to pay your creditors anything, your support debts also receive nothing. So, a support debt gets no money directly from a no-asset Chapter 7 case. You have to deal with the support debt yourself (perhaps with the help of your lawyer), and be prepared to do so right away.

 

Avoid a Support Lien through Bankruptcy

September 23rd, 2019 at 7:00 am

Chapter 7 is very limited in helping avoid a support lien. Chapter 13 is much more powerful, as long as you precisely meet some conditions.

 

Child and Spousal Support Liens

If you fall behind on child or spousal support payments, your ex-spouse can put a lien on your home.  (Most likely a lien can be imposed on your other property, but we’re focusing here on your real estate). The procedures vary state to state, but generally the lien is filed wherever property is recorded. Most often that’s at the local county recorder’s office.

The lien gives legal notice about the support claim against you.  The lien goes onto the title to your house. It gives your ex-spouse power to make you pay when you sell or refinance the house. Sometimes the lien can force the sale of the house in order to pay the support debt. So you want to avoid a support lien whenever possible. Or at least stop its enforcement after it’s been recorded.

Does Bankruptcy Stop the Filing of a Support Lien?

“[A]ny “act to create any lien” is generally stopped by a bankruptcy filing. See Section 362(a)(4) and (5) of the U.S. Bankruptcy Code about the “automatic stay.” The filing of a support lien is an “act to create… [a] lien.” So it appears that bankruptcy might stop a support lien.

However, there’s an exception under that automatic stay statute for the collection of support. Section 362(b)2)(B) of the Bankruptcy Code. If you file a Chapter 7 “straight bankruptcy” case your ex-spouse can continue collecting unpaid and ongoing support against you. This includes filing a support lien on your house, and enforcing that lien as described above. So a Chapter 7 case filing will not stop the filing of a support lien against you and your house. And it won’t stop the enforcement of that lien.

But there’s an exception to this exception. Under the right conditions filing a Chapter 13 “adjustment of debts” case will stop a support lien. Unlike Chapter 7, Chapter 13 can stop a support lien from being filed and recorded. Chapter 13 can also stop a previously recorded lien from being enforced.

That’s because although Chapter 13 does not stop the collection of ongoing support, it does stop collection of past-due support. By its nature a support lien pertains to past-due support. So filing Chapter 13 can stop the filing and recording of a support lien.

The Conditions under Chapter 13

Above we said that Chapter 13 protects you and your home from a support lien under the right conditions. These conditions are arguably sensible. But you must meet them precisely or you’d very likely lose the special benefits of Chapter 13. Your ex-spouse could begin collecting for past-due support, including filing and enforcing a support lien.

The conditions you must meet include:

  • Staying current on your ongoing support payments
  • Arranging to catch up on your past-due support within your 3-to-5-year Chapter 13 payment plan
  • Staying current on your monthly Chapter 13 play payments (through which you’re catching up on your past-due support)

These conditions are arguably sensible because the idea is that you deserve a break on past-due support collection, as long as you are sticking with your legally approved commitment to pay off that past-due support debt. If you don’t keep your commitment, you lose the protection from collection.

Conclusion

If you’re behind on support payments, filing a Chapter 7 case will not stop your ex-spouse (or support enforcement agency) from recording a support lien against your house. Nor will Chapter 7 stop the enforcement of that support lien. But, if you’re not already behind, filing a Chapter 7 case may discharge (write-off) enough other debts so you can stay current on your support obligations.

Chapter 13 will stop the recording of a support lien for past-due support. It will also stop the enforcement of a previously recorded support lien against your house. But you must pay off the entire past due support obligation during your Chapter 13 payment plan. And you must do so precisely as agreed in that plan. Lastly, you must also keep current on any ongoing support obligation. If you do all these, you and your home will be protected from any support lien. Then at the end of your case you will be current on all support. Therefore your ex-spouse/support enforcement agency will no longer have any ability to impose a support lien.

 

Bankruptcy Does Not Write Off Child or Spousal Support Debts

March 11th, 2019 at 7:00 am

Child support and spousal support debts cannot get written off in bankruptcy. But is your specific divorce debt legally considered support? 

 

We’re in a series of blog posts about special kinds of debt which bankruptcy may not discharge—write off.  So far we’ve covered criminal fines and restitution, and income taxes.

Child and spousal support are more like criminal debts than like income taxes. Bankruptcy simply does not discharge a criminal debt, as long as it really is a criminal, not civil, obligation.  Bankruptcy does discharge income tax debts that meet certain conditions. Bankruptcy simply does not discharge child and spousal support, IF it fits bankruptcy’s definition of support.

No Discharge of Support

Bankruptcy law is clear that neither Chapter 7 “straight bankruptcy” nor Chapter 13 “adjustment of debts” discharges support debts.

Section 523 of the U.S. Bankruptcy Code lists the “Exceptions to discharge.” It includes that “A discharge under [Chapter 7] does not discharge an individual debtor from any debt—(5) for a domestic support obligation… “ Section 523(a)(5).

Chapter 13 says the same thing by incorporating this Chapter 7 exception to discharge in its own list of exceptions.  Section 1328(a)(2).

What’s Considered Support in Bankruptcy?

So if you owe a “domestic support obligation,” you’re not getting out of it through bankruptcy. But what does that phrase mean? What does it include and what might if not include?

The Bankruptcy Code’s definition of “domestic support obligation” is 221 words long, containing 10 clauses. Section 101(14) of the Bankruptcy Code.  It appears to be a broad definition, covering anything that would sensibly be considered child or spousal support. For example, the debt could be owed not just to your ex-spouse or your child, but also to a current spouse (through a separation agreement) or to the parent, legal guardian, or responsible relative of a child (based on a court order of support, even if not biologically your child). In other circumstances, to be considered support the debt does not necessarily need to be based on a court order. It can be based on a separation agreement or “a determination made in accordance with applicable nonbankruptcy law by a governmental unit.”

Yet there are some limitations. For example, support obligations are often assigned for collection to someone other than the ex-spouse or child. Usually it’s assigned to a state or county support enforcement agency—then it’s still considered support. However, a support obligation that was “assigned to a nongovernmental entity” for collection is no longer considered support in bankruptcy. That is, it isn’t “unless that obligation [was] assigned voluntarily by the spouse, former spouse, child of the debtor, or such child’s parent, legal guardian, or responsible relative for the purpose of collecting the debt.” Section 101(14)(D).

Obligations “In the Nature of” Child or Spousal Support

Sometimes a domestic relations court will call something support that really isn’t.  The bankruptcy court does not have to accept what your divorce court labeled as support.

The definition of a “domestic support obligation” (that is, support) includes the requirement that it really be “in the nature of alimony, maintenance, or support” on behalf of the pertinent person. Section 101(14)(B). If it’s not, the debt may be dischargeable.

“Support” That Might Be Dischargeable in Bankruptcy

For example, a debt that’s labeled as support might not really be “in the nature” of support if it’s actually a “property settlement” obligation that’s mislabeled as spousal or child support.

A property settlement obligation involves the resolution of a marital asset or debt. For example, you may owe money to your ex-spouse in return for receiving more than your share of marital assets. Or you may owe in return for your ex-spouse taking on what had been a joint debt. If a divorce judge requires you to pay “support” for what is really a property settlement, it may be discharged in bankruptcy.

The Difference This Can Make

Chapter 7 discharges neither support nor property settlement debts.  But Chapter 13 can discharge property settlement debts.

So if you have obligations called “support” but which are not “in the nature of support,” a Chapter 13 is worth looking into. Chapter 13 may especially be worthwhile if the debt at issue  is large.

Conclusion

If you owe a debt labeled as support by your divorce court, most of the time it will indeed be “in the nature of” support. But not always.

You can see that the interplay between divorce law and bankruptcy can get complicated. Talk with your bankruptcy lawyer about all of your divorce obligations to get all the relief you’re entitled to.

 

The Surprising Benefits: Stop Collection of Support Arrearage

June 18th, 2018 at 7:00 am

Ongoing child or spousal support is a very special type of debt in bankruptcy. So is support arrearage. Here’s how bankruptcy handles them. 

 

Most Debts

Filing bankruptcy stops—or “stays”—the collection of most debts. (See Section 362(a) of the U.S.  Bankruptcy Code about the “Automatic Stay.”) Then at the end of the bankruptcy case most debts are discharged—legally written off. (Sections 727 and 1328 of the Bankruptcy Code.) At that point the creditor is permanently forbidden to collect the debt.

Special Debts

However, filing bankruptcy doesn’t stop the collection of certain specific types of debts. And it only temporarily stops the collection of other types. These tend to be the types of debts that bankruptcy does not discharge.

Also, with some debts, whether collection is stopped depends on whether you file a Chapter 7 “straight bankruptcy” or instead a Chapter 13 “adjustment of debts” case.

The special debts for which collection does not stop or may stop only temporarily include:

  • ongoing monthly child and spousal support
  • child and spousal support arrearage
  • recent income taxes
  • student loans
  • debts incurred through fraud

Again, these tend to be debts that do not get discharged in bankruptcy. However, bankruptcy does provide tools for resolving such special debts permanently. Today we’ll show how this works with ongoing child/spousal support and support arrearage. We’ll cover the rest in the next couple of weeks.

Ongoing Child and Spousal Support

We need to distinguish between ongoing child and spousal support and support arrearage.

Ongoing support is what the divorce court requires you to pay on a regular basis, usually monthly. It is a type of obligation treated with more respect than likely any other consumer debt in bankruptcy.

Accordingly, filing bankruptcy does not stop the collection of ongoing support. If you are paying support voluntarily you need to continue paying it.  If you are paying through a payroll deduction or a garnishment, it will continue.

This is true whether you file a Chapter 7 or a Chapter 13 case. Neither affects your continued obligation to pay ongoing support. The “automatic stay” does not apply. (Section 362(b)(2).) The discharge of debts does not apply. (Sections 523(a)(5), 1328(a)(2), and 101(14A).)

Child and Spousal Arrearage

As for support arrearage, neither Chapter 7 nor 13 can discharge this kind of debt either.

However, the automatic stay can stop collection of support arrearage, but only in a Chapter 13 case. Filing a Chapter 7 case will not stop support arrearage collection actions.

This ability to stop support arrearage collection through Chapter 13 can be extremely helpful. If you are behind on support payment, especially if you are significantly behind and its collection is financially hamstringing you, filing the more complicated Chapter 13 may well be worthwhile for this reason alone.

It’s extremely important to be aware that after filing your Chapter 13 case you can lose this automatic stay protection about collection of support arrearage. To prevent renewed collection, 1) you must keep current on your ongoing support, 2) your Chapter 13 plan must show how you will pay all the support arrearage during the case, and 3) you must consistently make your Chapter 13 plan payments so that you are in fact making continued progress towards paying off the support arrearage. If you don’t do any of these, your ex-spouse or support enforcement agency can quickly get the bankruptcy court to give permission to re-start collection of the support arrearage.

 

Limited Automatic Stay Protection for Unpaid Child/Spousal Support

February 7th, 2018 at 8:00 am

Chapter 7 doesn’t stop collection of unpaid support, but may enable you to catch up. Chapter 13 does stop this collection, conditionally.   

 

Our recent blog posts have been about situations when creditor collection actions are not stopped by a bankruptcy filing.  An example is a criminal fine or restitution. A bankruptcy filing has no effect on your obligation to pay criminal debts or on the collection of those debts.

We’ve also gotten into situations when collections are stopped only temporarily, including when that’s long enough to solve your problem. An example is a recent income tax debt. A Chapter 7 bankruptcy filing stops tax collections only for a few months. But that should be long enough to start a monthly payment plan, especially one that you can now afford after getting rid of all or most of your other debts.

So today we get into one special kind of debt for which the debt collection either doesn’t stop at all, is stopped only temporarily, or is stopped permanently. If you are behind on child or spousal support, you have three options in bankruptcy.

  • Filing a Chapter 7 “straight bankruptcy” does not stop collections on unpaid support at all. But it may write off enough other debts so that you can catch up on support.
  • Filing a Chapter 13 “adjustment of debts” can stop collections on unpaid support. But that can easily become only temporary.
  • A Chapter 13 case can stop such collections IF you act very proactively and consistently.

We explain these today.

The “Automatic Stay” on Support Collections

Unpaid child and spousal support is a very special kind of debt. It is treated as an almost sacredly among debt. Without cataloging all the differences, you can never discharge (legally write off) a support debt. (See Sections 523(a)(5) and 101(14A) of the U.S. Bankruptcy Code). It is the highest priority of the many so-called priority debts—meaning it must be paid ahead of all other debts. (See Section 507(a)(1) of the Bankruptcy Code.)

Unpaid support is special also in that you’re helped by the automatic stay only in to a limited extent. However that limited extent may nevertheless be extremely helpful.

Some Limited Help in Chapter 7

As we said above, the automatic stay does not even come into play under Chapter 7 as to unpaid support. But in the right situations Chapter 7 still helps by discharging all or most of your other debts so that you can afford to catch up on your unpaid support.

You or your attorney would negotiate terms for catching up with your ex-spouse or with the support enforcement agency. If getting rid of your other debts gives you the financial ability to catch up quickly on support, Chapter 7 could be a practical solution.

The Practical Problem

The problem is that your spouse or support enforcement may no longer accept terms that would work for you.  Since Chapter 7 does nothing to stop your ex-spouse or support enforcement from continuing or starting collection efforts against you, you have no leverage and no protection.

Temporary Help in Chapter 13

Filing a Chapter 13 case DOES stop support collections at least temporarily. But your ex-spouse or the support agency can quickly file a motion asking to resume collections. The bankruptcy court would likely grant this motion unless you meet a set of requirements, and do so timely and extremely consistently. If you don’t, actions to collect on the unpaid support could resume quickly.

Permanent Help in Chapter 13

However, IF you DO strictly follow the requirement, the collection of unpaid support obligations IS stopped under Chapter 13. And this collection continues being on hold throughout the 3-to-5-year course of the Chapter 13 case as long as you continue meeting those requirements.

Here are those crucial requirements:

  • Your Chapter 13 payment PLAN shows how you will pay all the upaid support debt during the plan period.
  • You pay any future ONGOING monthly support payments on time. It’s especially important that you’re on time with the payments due shortly after you file the Chapter 13 case.
  • You actually DO pay your monthly Chapter 13 plan payments on time throughout the case. Otherwise you’re not paying the unpaid support debt as you committed to do in your plan.

If you follow these requirements to the letter your ex-spouse/support enforcement agency would not be able to get court permission to take any collection actions against you throughout the Chapter 13 case. Then by the end of the payment plan you’d be current on the support. Your problems on this front would be fully resolved.

 

Catching up on Child or Spousal Support

August 16th, 2017 at 7:00 am

If you’re behind on support payments, filing under Chapter 13 can legally stop your ex-spouse and support enforcement from pursuing you.  


Your filing of a Chapter 13 case can stop your ex-spouse and support enforcement agency from very aggressively pursuing you. It can give you a reasonable time to cure your unpaid support payments. But you have to strictly follow the rules to get this advantage.

Here’s how it works.

The “Automatic Stay” As It Applies to Child and Spousal Support 

Filing either a Chapter 7 or Chapter 13 bankruptcy case stops most creditor collection actions.  This happens through the power of the “automatic stay.”  See Section 362(a) of the U.S. Bankruptcy Code.

But child and spousal support debts are an exception to the automatic stay. The Bankruptcy Code makes clear that the “automatic stay does not apply to “the collection of a domestic support obligation.” Section 362(b)(2)(B).  “Domestic support obligation” includes both child and spousal support. Section 101(A14). And it includes support that becomes owing “before, on, or after the date” of filing the bankruptcy case.

So collection of both past-due support and ongoing support is generally not stopped by a Chapter 7 “straight bankruptcy” filing.

Also, if you file a Chapter 13 “adjustment of debts” case, the collection of ongoing monthly support payments is not stopped. That makes sense since there is usually a divorce court order that requires the payment of those monthly amounts. The federal bankruptcy court respects these divorce court orders. So if you need to terminate or reduce a monthly support payment, that needs to be done through the divorce court which entered that support order.

Chapter 13 and Past-Due Support Collection

However, Chapter 13 does stop the collection of past-due support.

That can be hugely important. That’s because a Chapter 13 case not only stops past-due support collection, but provides a practical way to catch up.

If you are behind on child or spousal support Chapter 13 gives you up to 5 years to catch up. And it can protect you throughout that time in a number of ways. It protects you directly from the collections actions of your ex-spouse or your local support enforcement agency. And it also protects you from all of your other creditors as you deal with all your debts at once through a court-approved payment plan.

Your Chapter 13 payment plan works because it is based on what you can afford to pay. It takes care of everybody in one package so that you don’t worry about not being able to catch up on support because of the demands of other creditors.

Preventing or Stopping Aggressive Support Collection

This power of Chapter 13 is so important because your ex-spouse/support enforcement agency have some extremely aggressive collection tools. If you get behind, your wages and bank accounts can be garnished, liens can be placed on your real estate, and your driver’s license can be suspended. In most states any other state-issued licenses can also be suspended. This includes occupational and professional licenses that you may need to pursue your livelihood.

So you are very much at the mercy of your ex-spouse/support enforcement agency if you’re behind on your support obligations.

Must Follow Rules Strictly

So Chapter 13 can get you out of this difficult dilemma by stopping this intense collection of past-due support. But you can only maintain this protection if you follow the rules very strictly.

  • Your Chapter 13 plan must include enough money to pay off the past-due support before the end of the case.
  • You must keep current on your ongoing support (assuming you continue to owe it). This includes being very clear about when the first monthly support payment is due after your Chapter 13 case is filed and paying it on time. Otherwise your ex-spouse/support enforcement can inform the bankruptcy court of your non-payment. It would then very likely get permission to start/resume collection of the back support. That also applies to all subsequent monthly support payments during your Chapter 13 case.
  • You are already obligated to keep current on your monthly Chapter 13 plan payments, but all the more so here. Those plan payments are what’s paying the past-due support (along with whatever other debts you are paying through the plan). So if you fail to make any plan payment on time your ex-spouse/support enforcement can ask the court for permission to resume collection of the back support amount.

Conclusion

Chapter 13 gives you extraordinary power to stop collection of your past-due support. But you need to be really responsible or else you’ll lose that power.

 

Can “Priority” Debts Be Discharged in Chapter 7 Bankruptcy?

September 9th, 2016 at 7:00 am

A bankruptcy trustee would pay your “priority” debts ahead of other debts in an “asset case.” But what happens in a “no asset case”?

 

Our last blog post showed how a Chapter 7 trustee favors “priority” debts when paying any of your debts. The trustee pays priority debts in full before paying anything to your other debts. It gets the money to pay any of your debts by liquidating assets that you might own which are not protected, or “exempt.”

But the reality is that most of the time the trustee doesn’t pay ANY of your debts. That’s because most Chapter 7 cases are “no asset cases.” This means that the trustee has no assets to distribute to your creditors, since everything you own is protected from them.

So what happens to your priority debts then?

Priority Debts and Debts that Can’t Be Discharged

There’s a list of ten different kinds of priority debts in the U.S. Bankruptcy Code. (See Section 507(a)(1-10).) Many of them only apply to businesses filing bankruptcy, and of those quite a few to rather obscure businesses. (For example, one applies only to businesses that own a grain storage facility!)  Only a few kinds of priority debts apply to consumer and small business bankruptcies. In our last blog post we mentioned two of them—child/spousal support and certain taxes—but there are a couple others you may encounter.

If all the assets that you own are not protected, so that the trustee is not going to take anything from you, and not going to pay any of your debts, the priority debt distinction doesn’t make any difference.

But many kinds of priority debts have a characteristic that does make a difference in every Chapter 7 case where they are found: they can’t be discharged—legally written off—in bankruptcy.

Not every priority debt is nondischargeable. We must look at each kind of priority debt one at a time to see if it can be discharged. One of your biggest concerns when considering bankruptcy is whether you have any debts that bankruptcy would not discharge and that you’d have to pay anyway.

Nondischargeable Debts

There’s a separate list of debts that a bankruptcy does not discharge, or legally write off. Actually there’s one list that applies to Chapter 7 and another to Chapter 13. (See Section 523(a)(1-19) and Section 1328(a & b).

In the next few blog posts we go through the most important kinds of the priority debts, and see which of them can’t be discharged in bankruptcy.

Child and Spousal Support

We start today with child and spousal support. It is the priority debt of the highest priority. It is also never discharged in bankruptcy. Let’s look at how this works in practice.

“Domestic Support Obligation”

The Bankruptcy Code succinctly states that you can’t discharge a debt “for a domestic support obligation.” Section 523(a)(5). The definition of “domestic support obligation” is anything but succinct. (See the 220-word definition at Section 101(14A)!) But to keep it simple, a “domestic support obligation” is essentially a debt owed for child or spousal support.

Here’s an example how this works in a straightforward “no asset” Chapter 7 case.

A Practical Example

Assume that at the time you file bankruptcy you owe $85,000 in medical bills, personal loans, and credit cards. You’re also behind $2,700 on your $500 monthly child support payments because of a period of prior unemployment. You decide to file a Chapter 7 case because:

  • Everything you own is covered by property exemptions, meaning the bankruptcy trustee can’t take anything from you.
  • The $85,000 of debts would very likely all be discharged, and that would happen within about 4 months of filing.
  • Assume that you qualify for Chapter 7 because your income is less than the “median family income” for your family size for your state.
  • You know that you can’t discharge the $2,700 that you’re behind on in child support. But you already have made or expect to make arrangements to catch up with your ex-spouse or support enforcement.  

You and your bankruptcy lawyer prepare the documents and file your Chapter 7 bankruptcy case. The trustee assigned to your case verifies that everything you own is exempt—that you have a “no asset case.” So, even though your $2,700 support debt is a priority debt, the trustee has nothing to pay it with. Instead you agree to pay an extra $150 per month in catch-up payments directly to your ex-spouse or support enforcement agency, bringing you current in 18 months. You are confident about being able to afford this after discharging all your other debts.

Your Fresh Start

Three or four months after filing your case the bankruptcy court enters an order discharging all of your debts except the child support. You have gotten a fast financial fresh start, except for the support arrearage. But you have reasonable way to catch up on that, giving you a completely fresh start 18 months later. That’s much faster than a Chapter 13 case, which can give you more protection and flexibility on the back child support but would likely take 3 to 5 years to complete.

 

Addressing a Child or Spousal Support Lien through Bankruptcy

June 8th, 2016 at 7:00 am

A support obligation is a very special kind of debt, and the resulting lien on your home has to be dealt with in a very special way.

 

Support—A Very Special Debt

If you are behind on child or spousal support then you owe a debt that is treated differently both outside and inside bankruptcy.

Before you file bankruptcy, your ex-spouse and support enforcement agencies have very aggressive tools they can use against you, your income, and your assets to try to make you catch up on unpaid support.

If you own a home, those tools include a lien that is very likely imposed on your home’s title in the amount that you owe.

Some of the support collection tools that can be used against you, including the support lien on your home, are affected when you file bankruptcy and some are not. It depends on the circumstances and especially on whether you file a Chapter 7 “straight bankruptcy” or a Chapter 13 “adjustment of debts.” Chapter 13 gives you a much more powerful way to fight back.

Chapter 7 vs. Chapter 13

Chapter 7 “straight bankruptcy” is not able to directly help with support debts. All it can do is write off all or most of your other debts. Then you would likely be better able to pay your ongoing monthly support, and also catch up on the unpaid back support.

But both during and after a Chapter 7 case you would have no protection from collection actions against you for the unpaid support. Any lien that you might have on your home for the unpaid support would remain on the title throughout that time. You would have no protection from actions against your home under that lien, including potentially a forced sale of the home to pay the debt.

In contrast Chapter 13 does stop your ex-spouse’s or support enforcement agency’s collection of unpaid support. A Chapter 13 payment plan that you propose with your bankruptcy lawyer specifies how you’re going to catch up on the unpaid support over a period of as long as 5 years. This payment plan is based on your real budget. So it can give you a very flexible way to catch up on what you owe.

Very importantly, unlike Chapter 7, as soon as you file your Chapter 13 case you get protection from collection of the support that is unpaid as of that date. This includes collection actions on the support lien on your home. So you can escape the huge pressure that these aggressive creditors put on you.

Chapter 13 Conditions

These Chapter 13 benefits have important conditions and limits.

Chapter 13 DOES protect you and your home from the collection of the part of support that you are behind on as of the day your case is filed. That’s what you have up to 5 years to catch up on (although it’s often paid faster to get it out of the way).

But Chapter 13 does NOT stop collection of ongoing monthly support payments (assuming that you continue to owe them). So you have to continue paying ongoing support.

It’s extremely important that you DO you pay those regular monthly payments during your Chapter 13 case. That’s because if you don’t keep making those ongoing support payments you could easily lose the protection Chapter 13 otherwise provides you against collection of the support that was owed as of the date your case was filed. You have to pay your ongoing support or else your ex-spouse and support enforcement agency would have grounds to resume collection action on that support arrearage. That would likely include the ability to foreclose on the lien against home, plus all of the other aggressive collection actions the law allows.

It’s also extremely important to keep up on the monthly “plan payments,” the amount you have agreed to pay monthly to the Chapter 13 trustee to distribute to your creditors. Those payments include money earmarked for catching up on the unpaid support. So if you don’t make any of those Chapter 13 payments, the trustee, your ex-spouse and/or support enforcement agency could inform the bankruptcy court that you are not catching up on the support payment as agreed. Then you could lose the protection you’d filed the Chapter 13 case to get.

But the Benefits Make this Worthwhile

The protection and flexibility provided to you by Chapter 13 really is extraordinary.

During your Chapter 13’s 3-to-5-year payment plan, you usually pay only a part of your overall debts. You often pay only a relatively small part of most of your debts so that you can focus on certain more important ones, such as the support arrearage. You may even pay nothing on most of your debts so that you can pay one or a few other debts.

As mentioned above, you are usually given the entire length of your case to catch up on your support arrearage. The amount of time is huge compared to what most ex-spouses and support enforcement agencies would otherwise allow.

You also generally can pay other important debts—such as unpaid home mortgage and/or vehicle payments—ahead of or at the same time as you are catching up on support.

The amount that you pay to catch up on support during your Chapter 13 case often just reduces dollar-for-dollar the amount you pay on most of your other debts. That’s because in most cases the amount you pay each month, and therefore the total you pay over the life of your payment plan, is based on what you can afford to pay. With usually a fixed amount going towards all of your debts, what you are paying to catch up on support just reduces how much you pay on most of your other debts.

Again, as long as you continue doing what you need to be doing, your ex-spouse/support enforcement can’t enforce the support lien nor take any other action to collect the support arrearage. Then at the end of the case you will be current on your support, and the lien will be released from your home.

 

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