Bankruptcy Law Questions? Ask a Bankruptcy Lawyer.
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Child support specifically cannot be discharged in a chapter 13, the chapter 13 debtor must pay the entirety of the deficiency as part of the chapter 13 plan. Child support is considered a priority debt, and must be paid in its entirety during the chapter 13 payment plan term.
There are really two actions that an individual can take to make sure that this obligation is met. The first is to file a proof of claim with the court in which the bankruptcy is filed, that will provide notice to the bankruptcy trustee that the debt must be included in the chapter 13 payment plan (or in some way resolved through the bankruptcy). Without the proof of claim, the trustee and the court may not know that the debt exists.
There is an official form to be used published by the US Bankruptcy Courts, and can be found at:
In addition to the proof of claim, a priority creditor for something like child support can file a motion to exempt the creditor from the automatic stay that is in place (which is preventing the Office of Recovery Services from collecting). Every chapter 13 bankruptcy filed creates an automatic stay on collection of debts, but the stay can be waived for certain creditors under certain conditions. There is no form motion for this, and so retaining an attorney to assist with the drafting of this motion is suggested. It is not strictly necessary to have the stay waived so long as the proof of claim is filed, as this should get the debt paid as part of the bankruptcy.
Either way, if possible having an attorney assist is always a good idea. Although the proof of claim and follow up can be done without an attorney, if possible it is always prudent to use an attorney.
If you let me know what state you are in, I may be able to provide a referral source should you want one.
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The case is based in Utah, however I am residing in Washington state. Do I need to use a Utah attorney if I decide to use one or would one that's convenient to my location be ok?
It would probably be better to use an attorney in the state in which the bankruptcy is being filed. The issue is that, although most of bankruptcy law is federal (And therefore the same everywhere), there are intricacies that are state specific, and so using an attorney licensed in the state in which the bankruptcy is filed is the prudent course. Most things should be able to be handled over the phone, the process for a creditor in chapter 13 is not too complicated for an experienced bankruptcy attorney.
The Utah State Bar Association has an attorney directory by practice area at:
I hope this helps further, and let me know if you have any additional questions. Otherwise, please remember to RATE my answer so that I can receive credit for my work.
So you recommend specifically a bankruptcy lawyer or would the divorce/family law attorney work to consult for that?
I mean the divorce/family law attorney that handled my divorce that is.
Understood, and I would suggest working with an attorney that practices in bankruptcy law, yes. Now, a family law attorney may also practice in bankruptcy, you would have to ask them, but you would want to work with someone who has sufficient experience with filing a proof of claim and following up in a bankruptcy. Some attorneys handle multiple areas of law, but making sure that they have bankruptcy experience is important.
Understood. Thank you very much for your help!