Bankruptcy and Child Custody

Here in Florida, your right to spend time with your child is not related to whether or not you pay your child support. This may seem alarming to some, and certainly is not the way it used to be.

Bankruptcy and divorce are closely intertwined, and filing for Chapter 7 or Chapter 13 can have a significant impact on matters like child custody and domestic support. If you file for bankruptcy, will you still have to pay off your child support debts?

In bankruptcy, debts are divided into two basic categories: dischargeable debt, which can be eliminated, and nondischargeable debt, which the debtor is stuck with. Whether you file for Chapter 13 or Chapter 7, most obligations fall into the dischargeable category, including major sources of debt like credit card bills and medical bills. However, there are still a few debts that retain nondischargeable status — and child support is one of them.

Not only is child support considered non-dischargeable in both forms of consumer bankruptcy, it is also considered to be something called a “priority debt.” As the name suggests, priority debts are the first debts to be repaid to creditors. In fact, child support often takes precedence even over other priority debts, such as income tax obligations and financial restitution for crimes. It should also be noted that alimony, sometimes referred to as spousal support, also falls into the nondischargeable category along with child support obligations.

But what about the automatic stay, which normally places a freeze on collection actions? In Chapter 7 cases, your post-filing earnings are not considered to be part of the bankruptcy estate, which means the stay has no effect on domestic support payments. In other words, in Chapter 7 you can be sued if you fall behind on your child support obligations.

For Chapter 13 debtors, the stay offers a greater degree of protection. In Chapter 13, post-filing earnings are considered to be part of the bankruptcy estate, which means that your creditors would need to file a motion to lift the stay before they are permitted to pursue you for child support. Nonetheless, if you want to keep the benefit of the stay, you need to continue making full and timely payments as provided by your repayment plan.

bankruptcy should not have any bearing on the terms of a child custody arrangement. When the courts make decisions about custody plans for divorcing parents, their primary concern is finding the arrangement that’s going to provide the best possible quality of life for the child. That’s why family courts review factors such as whether either parent has a criminal record, whether the child would be safe from harm, and the personal preference of the child.

That being said, you always need to keep in mind that from the judge’s perspective, the optimal custody arrangement is one in which the child is being nurtured and cared for. If financial insolvency interferes with your ability to provide for your children — for example, if they are not properly fed, clothed, schooled, or housed because their needs are not affordable — then the judge may determine the other parent would give the child a more stable home environment.

If you already have a custody arrangement and go on to file for bankruptcy in the future, your arrangement will not be undone by the filing in and of itself. If you or your former spouse wishes to change a custody order, you will need to file a petition to modify the preexisting arrangement with the court that made the original determination.

At the end of the day, altering the terms of a custody plan really has more to do with your child’s quality of life than it does with bankruptcy, and your standing arrangement should not be seriously threatened unless your bankruptcy renders you unable to provide appropriate financial support. Of course, you should always consult with a family law attorney in addition to an experienced bankruptcy attorney in order to ensure you reap the combined benefit of having both perspectives.

Carolyn Secor P.A. focuses its practice in the areas of Bankruptcy and Foreclosure Defense in Clearwater, Florida. For more information, go to our web site www.BankruptcyforTampa.com or call 727-254-1704.