Can child support, alimony and equitable distribution be treated in bankruptcy?

First, let’s talk about what child support, alimony and equitable distribution are.  Everyone who has been to family court knows what child support is.  Florida statutes section 61 deals with all family law matters.  In that section, there is a formula that determines how much child support should be.  It is based on both parties income and expenses, need and ability to pay.  Most of the time, child support is resolved at mediation in a family case.  Either the father or the mother is going to be paying child support.  What happens if you get behind will be discussed below.  Alimony is based on fairness.  The court will determine how the parties have lived together, and based on ability to pay and the need of the receiving party, alimony may be awarded.  If a situation changes for either party, child support or alimony may be adjusted unless the final agreement or court order says they cannot be adjusted.  Equitable distribution is a different animal altogether.  The court will “fairly” distribute the parties personal property (including cash, money in bank accounts, retirement accounts, furniture, pictures etc).  Equitable distribution is treated differently in bankruptcy depending on the chapter that you file under.

If you are behind on child support, and  your ex or the State of Florida files a petition to compel you to pay, several things can happen.  If the court finds you have the ability to pay, you can be put in jail for contempt of the order requiring you to pay.  Your driver’s license can be suspended.  Your passport can be taken away from you.  If you file a Chapter 13 bankruptcy, you must be released from jail if you are there.  Your driver’s license must be reinstated, and your passport must also be reinstated.  This would be required to immediately overrule the state court order upon the filing of the bankruptcy.  There are two types of contempt however.  The first is civil contempt.  That is when the court does something to you to force you to comply with a court order.  The second is criminal contempt.  That is when the court finds you in contempt because you intentionally violated the court’s order.  Chapter 13 will only allow you to reverse the civil contempt issues.  The bankruptcy court does not have jurisdiction to stay a criminal contempt proceeding because all courts have the inherent power to force you to comply with its orders.

Alimony is treated the same way as child support.  If a petition is filed to require you to catch up on back alimony because you are behind, the court, after a finding of ability to pay he court may order you jailed until you do pay.  The state or the court can suspend your driver’s license and passport.  However, just as with child support, a Chapter 13 bankruptcy can put a stop to the family court proceeding, and allow you five years to repay the amount you are behind on your alimony. 

Both child support and alimony, when treated in the Chapter 13 repayment plan, must pay the regular monthly payment and the amount you are behind in those payments over a period of up to five years. 

The bankruptcy court does not have jurisdiction to reduce your regular monthly child support payments or alimony payments.  To do that, you must file a petition with the family court.  It is very important that this get done as quickly as possible if you no longer have the ability to pay or your ex no longer has the same need as he/she had when the original order was entered.  Once that petition is filed, if the family court ultimately rules in your favor, the payments will be reduced retroactively to the time you filed your petition to modify the child support or alimony.

As for equitable distribution, this is a dischargeable debt in a Chapter 13 bankruptcy.  So if you are required to give your ex half of the proceeds from your bank account, the filing of a Chapter 13 bankruptcy will relieve you of that requirement.  When you get a discharge in your Chapter 13 bankruptcy, that debt will be forgiven.  However, if you file a Chapter 7 bankruptcy, equitable distribution will not be forgiven.  Therefore, if you have a significant amount to pay in equitable distribution, or you owe back child support or alimony, Chapter 13 bankruptcy is an option worth considering.