Bankruptcy Prevents a Support Lien

Wasson and ThornhillChild & Spousal Support

Chapter 7 prevents a support lien by discharging other debts so you can afford the support payments. Chapter 13 does so by stopping liens directly.

 

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.

Bankruptcy Prevents 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  lien for support is an “act to create . . . [a] lien.” So it appears that bankruptcy potentially prevents 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 prevent the filing of a lien for support against you and your house. And it won’t prevent 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 prevent 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 prevents collection of past-due support. By its nature a support lien pertains to past-due support. So filing Chapter 13 prevents the filing and recording of a lien for support.

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 lien for child or spousal support.

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 filed through your Louisville bankruptcy lawyer will stop the recording of a 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 lien for support. Then at the end of your case you will be current on all support payments. Therefore your ex-spouse/support enforcement agency will no longer have any ability to impose a lien.