How Will Filing for Bankruptcy Affect Your Child Support Obligations In Divorce?
Watching your unpaid child support obligations pile up as you are less and less able to afford them can be truly demoralizing. The judge might treat you like you are not serious about parenting when your financial struggles have nothing to do with your level of commitment to your children.
Your ex might antagonize you; even if they do not directly say bad things about you to your children, they might do little to conceal their contempt for you and the fact that they think your financial troubles are your own fault. Even though this knowledge probably comes as little consolation, financial hardship is a condition you share with millions of other Americans.
The good news is that debts, even unpaid child support, cannot deprive you of your right to a stable relationship with your minor children. A central Florida divorce and family law attorney can help you modify your child support order if the current order places an unreasonable burden on you.
How the Courts Calculate Child Support Obligations
Child support is about the financial needs of the children, not the parents. That is why courts calculate it separately from the division of property in a divorce. The goal is for the children to enjoy a consistent standard of living even as they divide their time between both parents. The court considers the resources that both parents have available to meet the children’s material needs. It also considers how many days per year the children spend with each parent. Therefore, if you have a much higher income or more valuable non-marital property than your ex-spouse, you will probably have to pay a substantial amount in child support.
For example, a father who earns 80% of the family income but who only spends 90 days per year with the children will probably have to pay enough child support that his ex-wife will be able to live with the children in a more expensive house than she would have been able to afford without the child support payment. A lot of divorced people feel resentment about this situation, but the rationale is that the money is for the children, not your ex. It is not possible to erase your ex-spouse from your children’s lives; children have the right to a relationship with both parents.
Do Your Debts and Financial Obligations Disappear if You Declare Bankruptcy?
Of course, adults also have financial obligations that are unrelated to their children. Most people have long-standing debts toward which they have been making payments since before the children were born. Perhaps you still have student loan debt, or maybe you are still paying off a personal loan that you took out to fund a business that never got off the ground. Credit card debt is the rule rather than the exception for Americans of all income levels.
When your debts become insurmountable, you have the option to file for bankruptcy. “Bankruptcy protection” is probably a better term for this process than “bankruptcy.” When you file for bankruptcy, some of your debts disappear, while others just change the schedule of payments; this depends on which type of bankruptcy filing you do. Some debts remain unaffected even after you file for bankruptcy. The following types of financial obligations do not go away or lessen their amount if you declare bankruptcy:
- Tax debts
- Court-ordered fines for traffic infractions or criminal convictions
- Court-ordered judgments in civil cases, such as personal injury cases
- Alimony and child support
In other words, declaring bankruptcy will not make your past-due child support obligations go away. It also will not reduce the amount that you have to pay going forward. In fact, child support is such an inalienable obligation that, while tax debts did not lead to garnishment of the $1,200 stimulus checks that the federal government sent out this spring as part of the CARES Act, but unpaid child support obligations did. If the COVID-19 crisis will not get you out of paying child support, declaring bankruptcy certainly will not.
What To Do if You Cannot Afford Your Child Support Payments
It is possible to reduce your child support obligations, but what kind of relief is available to you depends on how the situation arose in which you were unable to keep up with your child support payments. Here are some common situations that lead to people falling behind on child support payments:
The court’s original order of child support, which it issued when it finalized your divorce, was unfair. Perhaps it miscalculated or miscategorized some of your assets or those of your ex-spouse. For example, maybe the court ignored the fact that your ex-wife lives with her boyfriend in a house he owns and does not contribute to the mortgage, or maybe it did not even make findings about this.
Your financial circumstances have changed since your child support order was issued. Perhaps you were out of work for a while, and your current job pays less than your previous job.
Your parenting schedule has changed. Perhaps your ex moved to the other side of Florida, so now you only see the children on holidays and in the summer, instead of every weekend. One of your children might also have reached adulthood since the child support order was issued.
If any of these situations apply, it is appropriate to file a motion to modify your child support obligations. The court may apply the modifications retroactively, thereby reducing the amount of back child support you owe, in addition to reducing the amount you will have to pay in the future.
Note: here are some dos and don’ts if your ex refuses to pay child support.
Contact Sean Smallwood About Divorce Cases Involving Child Support Disputes
Child support is applicable in almost all divorce cases where the couple has minor children. Even though child support is for the children, not the parents, the amount ordered should be reasonable and fair to both parents. A divorce lawyer can help you achieve this goal. Contact Sean Smallwood in Orlando, Florida for a consultation.
Sean Smallwood is an Orlando divorce attorney for the law firm Sean Smallwood, Orlando Divorce & Family Law P.A. where he represents clients in all areas of family law and divorce. 100% of the practice is devoted to family law. As an attorney in Orlando, he has helped many families with a wide variety of family law cases including Divorce, Child Custody, Child Support, and many other issues.
