Getting a child support order is a long and arduous process, but when one is finally granted, the parents can begin to put their financial lives back in order. Unfortunately, in these times, some noncustodial parents are looking to bankruptcy for relief. But, if that happens, what happens to the child support?
Does bankruptcy stop child support?
In a word, no. Federal bankruptcy law does not waive a California child support order. Even during the bankruptcy process, those ordered to pay child support must still pay that child support.
Can bankruptcy discharge unpaid child support?
Again, in a word, no. Unpaid child support, often called arrears, is classified as a non-dischargeable debt. This means that, even in a Chapter 7 bankruptcy, unpaid child support cannot be forgiven. In fact, a bankruptcy judge cannot even broach any of the factual findings from the child support case or modify any child support order.
Does that mean that bankruptcy will have no effect on child support?
The answer to this question is a bit less clear as it really depends. The noncustodial parent can contest the amount the state claims that they owe. Depending on the circumstances, the bankruptcy court could modify the amount owed, if there has been an error in calculating the back child support. This would not eliminate the amount owed, only lessen it.
The more likely scenario for a bankruptcy filing by the noncustodial parent is that this is a signal that a child support modification petition is coming. This means that the noncustodial parent will likely soon ask the family law court to lower the child support payments because of a change in circumstances. This can be a reduction of income, unemployment or some similar situation.
The act of filing for bankruptcy will not automatically qualify the noncustodial parent for a modification. Instead, they must prove there has been some change in circumstances that necessitates a modification order because their ability to pay was already factored into the child support order. Just because they decided to take out more debt, like buying a new car, does not mean their child support obligations will change.
These types of situations show how complicated California family law can become. This is why it is so important to work with an attorney early in the divorce process, and to keep them in the loop, even after the divorce is finalized.
