Bankruptcy in California: Does It Affect Child and Spousal Support?
Can my ex-husband escape paying for child support and alimony by filing for bankruptcy?
The Bankruptcy Code attempts to protect the rights of children and former spouses to collect support. Any support is non-dischargeable in bankruptcy by the code.
Any support is non-dischargeable in bankruptcy by the code.
The spouse who receives the support does not have to file any type of proof of claims or objections to the bankruptcy court to enforce his or her rights to continue receiving support.
In most cases, once a debtor files for bankruptcy, all creditors must stop all actions to collect their debts. This block is called an "automatic stay." The automatic stay stops all foreclosures, garnishments, bank levies, and creditors from calling you at all hours of the night. The automatic stay doesn't apply to the enforcement of the collection of child support or alimony. These types of obligations have a super priority under the Bankruptcy Code.
My child support and alimony are deducted from my former husband's paycheck. Will this garnishment stop if my husband files for bankruptcy?
Any child or spousal support orders that depend on payments from the husband or wife's current wages are generally affected by the bankruptcy filing. However, in many cases unscrupulous husbands will rack up thousands of dollars in child support arrears. The collection of child support arrears will be stored in a bankruptcy filing. Any garnishment order(s) that collect past due support arguably are stayed in Chapter 7, and certainly stayed in Chapter 13. In light of this, the husband will be able to propose a repayment plan.
I have filed a motion for an increase in child support. What happens to my motion if my ex-husband files for bankruptcy?
In most cases, the family court will not hear the support motion until the bankruptcy case is finished. Some judges will rule on the motion and hold that the automatic stay doesn't bar the family court from considering it. Other judges will require the moving party to obtain stay relief. Stay relief means that the bankruptcy court issues an order permitting the moving spouse to continue her family court motion requesting increased support. In the majority of cases, a bankruptcy court routinely grants these types of motions.
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