Bankruptcy and child support

[Preciousluve886]

What is the name of your state? Fla
Ive asked this question before and now need an answer again.
I live in Florida and the ex-husband lives in Alabama.
He was sending child support payments but has now stopped and is claiming chapter 13.
How on earth does that effect my child support and why has it stopped. He files chapter 13 and my son doesn't receive support?
I am trying to figure out how that works?
Any help would be greatly appreciated.
Why is my son being a victim in his nightmare?
ive no clue to his financial status and why he is claming this, so I cant give you any answers to why he is trying to do this.
I am just looking to find out how come he can stop support payments while he is doing this.

Thank you in advance for any help you can give.

Thank you and have a great day.

 

[Ladynred]

Child support payments can NOT be discharged with ANY type of bankruptcy. I do believe, however, that arrearages can be included in a Ch 13 plan, but he HAS to pay them all the same. It may be that his lawyer has instructed him to stop all payments until his plan is confirmed, but I'd sure as hell demand that he continue with this one ! You can file for a relief from stay.. child support is a very unique kind of debt.

 

[Preciousluve886]

bankruptcy and child support

Im sorry for my ignorance, but how do I go about filing a relief of stay and where and how do I do this?
I sure want to make sure that my son doesn't get left out in the cold.
I live in Fla and he lives in Alabama. I called child support to find out why I wasnt receiving the pymts anymore and they said he had filed chapter 13.
Thank you for your time Ladynred, you have answered my questions before and they have always helped me out.
Your time and patience have always been appreciated my me.

 

[Ladynred]

The state being a creditor, can file for a relief from stay to continue to collect child support payments. According to what I've found in the BK code, if I read this right, child support payments are EXEMPT from the automatic stay.

"Sec. 362. - Automatic stay
The filing of a petition under section 301,302, or 303 of this title, or of an application under section 5(a)(3) of the Securities Investor Protection Act of 1970, does not operate as a stay -
(1)
under subsection (a) of this section, of the commencement or continuation of a criminal action or proceeding against the debtor;
(2)
under subsection (a) of this section -
(A)
of the commencement or continuation of an action or proceeding for -
(i)
the establishment of paternity; or
(ii)
the establishment or modification of an order for alimony, maintenance, or support; or
(B)
of the collection of alimony, maintenance, or support from property that is not property of the estate;
(3) "

This section refers to ANY Chapter of bankruptcy, so I believe it means the Child support agency is NOT restrained from collecting the support your child is rightfully entitled to, no matter WHAT your ex is trying to get away with with his bankruptcy. Arrearages can be included in his plan, but I believe he must continue to make his normal support payments.

I also found this on a family law attorney's website:

"The automatic "stay" normally lasts until the end of the bankruptcy process. At this time, any remaining debts are "discharged" or dismissed by the bankruptcy court. CSE is not bound by this stay, since actions to establish paternity and actions to establish, collect or modify child support and spousal support are exemptions to such automatic stays."

If you have a lawyer, I would suggest you follow thru on this and get the Child Support Enforcement agency in AL to do what its supposed to do - get your child support !!

 

[Preciousluve886]

Child Support & bankruptcy

Gotta give you a big thumbs up LadyNred.
The info you provided was a big help. Now I have another question for you as I have just learned this.
I dont know wheather it is true of not though.
I have 2 writs against my ex, one for arrearage and one for medical bills. Since he is going into bankruptcy (13)
His wife has just stated to me that once he is done with the bankruptcy he willl not have these warrants against him anymore. I sincerely find this hard to believe.
I was under the asumption that once I have these warrants for him they would be good until he pays his debts to my son.
I dont understand how a bankruptcy would make the warrants go away. Unless his wife is under the wrong impression which I do believe she is. She stated that there lawyer in Alabama said they would go away once he came out of bankruptcy.
Can you clarify this for me.
Thank you for your help and I hope you have a great day!

 

[Mark D. Dunn]

The automatic stay does, in fact, apply in a Chapter 13 case (it stays the collection of child support from property of the estate) but not a Chapter 7. This is a fine distinction; you need to read the Code [sec. 362(b)(2)(B)].

 

[HomeGuru]

The automatic stay does, in fact, apply in a Chapter 13 case (it stays the collection of child support from property of the estate) but not a Chapter 7. This is a fine distinction; you need to read the Code [sec. 362(b)(2)(B)].

**A: that is why the writer should file a motion for relief so that the cs payments can continue.

 

[Preciousluve886]

Where excatly do I find this code.
Can you post the web address so I can read this code.
Thank you in advance for your help

 

[Ladynred]

The section referred to is what I posted above. I wasn't 100% sure about the stay for CS in a Ch 13. So, if the Stay applies to CS in a Ch 13, then you need to do as I stated originally, the State, as the creditor, is going to have to ask for a relief from the stay to allow collection of the child support payments. You, as an individual, MAY be able to file the motion. Someone else needs to clarify which party should do so since the State is the one actually doing the 'collecting' of the CS and making sure that you get it.

As for the judgments, the arrearages can NOT be discharged. If he has not paid them 100% by the time he's done with his Ch 13, then he will have to continue to pay them on his own. Once that judgment is satisfied, it will then be over. If the medical bills were also part of the child support, the same holds true, he cannot get out of them. So, the new wife my have misunderstood the lawyer and took it to mean the judgments would be gone no matter what. That is untrue in the case of child support, there is absolutely NO WAY for him to get out of paying the full amount due.