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If your ex-husband was ordered to pay a specific amount of child support for your child or children; for example, a dollar amount per month or a percentage of his income each month, that is an application of state law. Bankruptcy is a federal matter. Even so, a completed bankruptcy can be used by an ex-spouse to support his request (to the state court that granted the divorce) to modify a child support order.
Ex-Spouse Must Request a Modification by the Court
Your ex-husband cannot simply decide that he will not make further child support payments (or make reduced payments) just because he has filed for bankruptcy or has completed the bankruptcy process. He has to apply to the judge who ordered the original child support and request a modification of the support. He can show the proof of bankruptcy and his current financial situation to try to convince the judge to reduce the support.
However, even if your ex-husband's request for a modification is successful, and there's no guarantee that it will be, the modification will not reduce any child support money that is past due.
Child Support Amounts Are Often Modified
Child support can be modified in either direction (a decrease or an increase), depending on a significant change in the circumstances of the payer. Losing a job, falling ill or being injured, the financial collapse of a business, or unexpected windfalls or profits can change the amount that a court will order be paid as child support. The central factor that a court considers is the well-being of the child or children.
Child Support Debt Is First Priority in Bankruptcy
In a bankruptcy, past-due child support gets first priority in the list of the debts to be paid off, generally. There is an exception: when the "collecting" ex-spouse turns over the past-due support debt to a private collection agency in an effort to get the support. Such a child support debt then changes from a priority claim to an "ordinary" claim, along with debts such as credit card balances.
This change to an ordinary claim does not happen when the collection is being handled by an IV-D (pronounced "ivy-dee") agency, which is a public agency that enforces child support orders.
If you are divorced and are concerned about your child support, contact us today to speak with an experienced divorce attorney who will help you understand your legal rights.