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Ask WALLSTREETESQ Your Own Question

WALLSTREETESQ
WALLSTREETESQ, Attorney
Category: Bankruptcy Law
Satisfied Customers: 15667
Experience:  14 years exp., CH 7 AND 13 Bankruptcy cases, AFL-CIO UNION PLUS, UFT NYSID AND ALL MAJOR UNIONS
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what do I need to do if my ex owes child support arrears and

Customer Question

what do I need to do if my ex owes child support arrears and is filing chapter 13 bankruptcy?
Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  WALLSTREETESQ replied 1 year ago.

WALLSTREETESQ :

Hello I am a licensed attorney here to help you with your question, please review my response and do not hesitate to ask for clarificati on.

WALLSTREETESQ :

Their is nothing you have to do,

WALLSTREETESQ :

under the bankruptcy law, child support and arrears of support cannot be discharged in bankruptcy,

WALLSTREETESQ :

what you can consider is if he is not paying you to file a child support petition in the family court to enforce the order,

WALLSTREETESQ :

he in no way can discharge or lower his child support obligations in a chapter 13 bankruptcy

Customer:

I have been getting conflicted advice. I am being told I have to file a proof of claim with the bankruptcy court as a creditor.

WALLSTREETESQ :

You can do that, but if you do not it does not matter, he cannot discharge the debt in any way,

WALLSTREETESQ :

Section 362(b)(2)(B) specifically excludes from the automatic stay any action to collect a “domestic support obligation.

WALLSTREETESQ :

the automatic stay protection associated with a Chapter 13 filing should not stop a state court judge from hearing or ruling on a contempt action for collection of child support, nor should it stop a wage or bank account garnishment against the child support payer.

WALLSTREETESQ :

What that means is if he fails to pay, regardless of his bankruptcy,

WALLSTREETESQ :

you can take him to court and they can force him

Customer:

His bankruptcy attorney told him I would have to file a claim. I looked up the website and did not find it too friendly. Maybe for credit cards but not for child support. he owes a substantial amount in interest. Child support services are in place and a lien for arrears. what happens to the interest?

WALLSTREETESQ :

A proof of claim is to be filled by all other creditors, so they are paid in a chapter 13, you will have to be paid regardless

WALLSTREETESQ :

His lawyer is wrong,

WALLSTREETESQ :

The interest remains,

WALLSTREETESQ :

all he can do if you agree,

WALLSTREETESQ :

is allow him to pay the child support arrears, in a 60 month payment plan,

Customer:

That's what the paperwork from his attorney says a 60 month repayment.

WALLSTREETESQ :

You can look at the link above as well

WALLSTREETESQ :

the only thing that can do if you agree is that it allows him to pay the full arrears owed over 60 months,

Customer:

So if his attorney has this paperwork drafted with me as a creditor, ultimately that would be his problem?

WALLSTREETESQ :

yes, their is nothing wrong with filling the proof of claim,

WALLSTREETESQ :

however it is not needed, he would not be able to get rid of the child support or arrears if you did not file it.

Customer:

I mean no disrespect in that....I just want to make sure I'm protected. The proof of claim asks interest rates I'm charging, things that make no sense to me. I don't want to get it wrong.

WALLSTREETESQ :

In terms of the interest rate 8% is usual,

Customer:

Am I a secured creditor if there are liens for the arrears?

WALLSTREETESQ :

Child support is typically a priority debt, not a secured debt, if the lien is on property it may be different

Customer:

It is listed on t

Customer:

the priority debt

WALLSTREETESQ :

that is fine

Customer:

His attorney told him not to worry about the amount listed on his paperwork as the amount owed to me because I would have to figure that out. Child support payments always go through our Wi kids trust. His attorney is telling him she would disperse his payment to them. I just wanted to make sure I'm protected if I dont file the proof of claim. Quite frankly, I dont want to see him taken advantage of either.

Customer:

thank you for your time.

WALLSTREETESQ :

In terms of the child support the law is clear, he has to pay it and has to pay arrears regardless of the proof of claim,

WALLSTREETESQ :

In fact if he does not pay you, it is possible you can file a motion later,

WALLSTREETESQ :

and have his entire case dismissed,

WALLSTREETESQ :

he is not allowed to get a discharge if he owes any child support arrears, under the law.

Customer:

Thank you. Have a good night.

WALLSTREETESQ, Attorney
Category: Bankruptcy Law
Satisfied Customers: 15667
Experience: 14 years exp., CH 7 AND 13 Bankruptcy cases, AFL-CIO UNION PLUS, UFT NYSID AND ALL MAJOR UNIONS
WALLSTREETESQ and 3 other Bankruptcy Law Specialists are ready to help you

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