New Year Resolution #5: Solve Spousal or Child Support Arrearage Problem

Wasson and ThornhillChild & Spousal Support

Bankruptcy Can Address Spousal and Child Support Arrearage

Bankruptcy Can Address Spousal and Child Support Arrearage

Spousal and Child Support Arrearages  are a dangerous because support enforcement is very powerful. You can go to jail for having back owed child support. Fight back with something even stronger.

Dangerous Debt

Falling behind on child and/or support payments creates an especially vicious cycle of debt because the law gives your ex-spouse and the support enforcers extremely powerful weapons against you. Once you fall behind, extraordinary collection pressures can be put on you, means of intimidation that are way beyond what other creditors, and even tax collectors, can do.

Support enforcement laws differ somewhat state to state. But in all or most states, besides your wages and bank accounts being garnished, and liens being placed on your home and other real estate, and sometimes even jail time for non-payment of child support, your driver’s license can be suspended if you fall behind on support. If you have a commercial driver’s license that you need for your job, it can often be suspended as well. And if your occupation or profession requires you to be licensed by the state, you can have that license suspended as well (e.g. your nursing license).

The License Suspension Threat

This threat of occupational/professional license suspension doesn’t include just doctors, dentists, nurses, and attorneys, but also many occupations you might not think of—in most states everybody from dental hygienists to plumbers, from EMTs (emergency medical technicians) to electricians, real estate appraisers and real estate brokers, barbers and hairstylists, civil and mechanical engineers, stock brokers and financial planners, and even most employees working at a child care center or for your local storefront insurance agent. Even your hunting and fishing licenses can be suspended.

They Don’t Even Have to File a Lawsuit Against You

Unlike most creditors, your ex-spouse or support enforcement agency does not need to sue you and give you a chance to object before being able to do these nasty things to you. That’s because the divorce decree, or other court order, that created the support obligation in the first place is usually treated as a judgment. That means that each unpaid support payment is treated as a violation of the judgment, opening you up to the aggressive enforcement mechanisms provided in the law against you.

Chapter 7 Only Helps a Little

A regular Chapter 7 bankruptcy can’t help much, beyond just “discharging” (legally writing off) your other debts so that you can better afford to pay your monthly support payment, and hopefully also have the means to catch up on the past due payments. But a Chapter 7 filing won’t stop ANY of the collection efforts against you, either as to the ongoing monthly payment or the past due payments. So if you’re seriously behind, this will not likely get you out of the vicious cycle.

Chapter 13 Provides the Crucial Relief in Spousal or Child Support Arrearage

Although even Chapter 13 can’t get rid of (legally “discharge”) any past due support payments and, by itself it can’t reduce or eliminate your ongoing support obligation, it can do one absolutely critical thing—stop ALL collection efforts against you and your assets (and your licenses) as to your past due support. And then it gives you time, as much as 5 years, to catch up on that past due support.

If you are substantially behind on the past due support, this protection and the time needed to get current is crucial because often there is no other feasible option. With constant grabbing of your money to pay both the ongoing support and the back support, you have trouble paying any other creditors as well as your living expenses. Chapter 13 gives you financial peace and consistency so that you can responsibly take care of your most important obligations, of which the support is usually at or near the top of the list.

This bit of peace may also give you the emotional break that you may well need to do something else potentially very important—to go back to the divorce court to reduce your ongoing monthly support obligations. Depending on your state’s laws and procedures, you may well qualify for lowering that support payment going forward. And it may not be that difficult to accomplish if you can document a decrease in your own income and/or an increase in your ex-spouse’s.

Relief in Chapter 13 is Conditional

To end on a cautionary note, be aware that the protection you get from collection of past due support under Chapter 13 almost always lasts only so long as you are perfectly making your ongoing support payments. And this means making sure to pay those payments starting immediately after your Chapter 13 case is filed. You also need to be diligent in making your Chapter 13 plan payments—since that is how you are paying the support arrearage. If you don’t do these two, at any time your ex-spouse or support enforcement agency can ask the bankruptcy judge for permission to resume collection of the past due support debt. And the judge will not likely have any patience with you. Chapter 13 is powerful, but you must follow its rules if you don’t want to lose out on its benefits.