Are Domestic Support Obligations Dischargeable?

Most unsecured debts are dischargeable in a Chapter 7 bankruptcy case.  A few are not, including a debt owed for a domestic support obligation.  The Bankruptcy Code defines domestic support obligation as any debt owed to a spouse, former spouse, parent, legal guardian, responsible relative, child, or someone on behalf of the child, including a government entity, for alimony, maintenance, or support pursuant to a court order, separation agreement, or property settlement agreement.  The definition of domestic support obligation also includes joint debts which the debtor was ordered to pay pursuant to a divorce decree, including an order to pay the former spouse’s attorney’s fees. 

In Chapter 13 cases, domestic support obligations are dischargeable if two conditions are met.  First, the debtor must certify that all domestic support obligations required by the Chapter 13 plan have been paid.  Second, the debtor must certify that all domestic support payments which became due after the Chapter 13 case was filed have been paid. 

Prior to enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), divorce and other family law proceedings were stayed by the filing of a bankruptcy petition.  However, the BAPCPA specifically excludes from the prohibitions of the automatic stay the following: 

• Proceedings for the establishment of paternity;
• Proceedings to establish or modify child support;
• Proceedings related to custody and/or visitation;
• Divorce proceedings, except to the extent that they seek to divide property; and
• Proceedings involving allegations of domestic violence.

Additionally filing bankruptcy will not stay the garnishment of post-petition wages or levy of a pension plan to satisfy delinquent domestic support obligations.   Moreover, license suspensions and tax refund offsets may still be conducted to satisfy delinquent domestic support obligations after a debtor files bankruptcy. 

If you are behind on a domestic support obligation and are considering bankruptcy, you should speak with a qualified bankruptcy attorney to determine whether filing bankruptcy would be helpful.