Bankruptcy, Maintenance, and Child Support

Posted on in Child Support

bankruptcy, Wheaton divorce attorneysIn this day and age, bankruptcy has become more common than it used to be, unfortunately, and as such, more and more people are encountering issues with other obligations that are directly related to bankruptcy. While many believe that a bankruptcy will essentially wipe out all their debt, what they do not know is that certain obligations are specifically exempted from this, and must still be paid regardless of any financial issues.

Spousal Maintenance

While it is not mandatory, a large number of divorce cases in Illinois assign maintenance rights to one spouse or the other. In Illinois, this obligation is specified to last a certain period of time, but if the obligor—the spouse who is paying support—must file for bankruptcy, it is reasonable to look into the possibility of modification. However, the key word is modification. Under the U.S. Internal Revenue Code, maintenance or alimony obligations are not considered dischargeable. In other words, any debts that are of this nature will not be simply erased, as other debts might be in a Chapter 7 bankruptcy.

There are select situations in which you may be able to change or write off a debt of spousal support, but they are rare and involve the assignment of the debt to someone other than the recipient spouse. U.S. tax code holds that maintenance is not dischargeable because it is what is referred to as an obligation of support, but once the debt is assigned, it can no longer be said to support the spouse. Generally, even if you declare bankruptcy, you will still be on the proverbial hook for spousal support in Illinois. However, this does not preclude you from attempting to deal with the issue directly and asking your spouse—or a family court—for a modification due to your struggling finances.

Child Support

Child support obligations are almost never dischargeable. The U.S. Bankruptcy Code states explicitly that “domestic support obligations” are not dischargeable, and child support falls under this category. There is sometimes confusion on this score because if you file Chapter 13, any child support arrearages do come under the aegis of the Chapter 13 plan, but this does not mean these debts are dischargeable. It merely means that under a Chapter 13 repayment plan, the arrearages will be part of that plan.

In most cases, debt relating to the care of your children is less likely to be dischargeable than if it were incurred on your own behalf. A common example is medical care. For example, if your child requires significant medical care, a court is more likely to deem such costs as domestic support obligations, especially if these costs are foreseeable. The state of Illinois holds that child support and all its attendant expenses are due to the child, not to your ex-spouse, and as such, treats attempts to avoid payment quite seriously.

Seek Experienced Legal Assistance

Dealing with bankruptcy is very complex at the best of times, and trying to deal with one while in the midst of a divorce can be too much for any one person to bear. If you are face such a situation, contact an experienced DuPage County family law attorney for assistance. Call 630-871-1002 for a free consultation at any of our three convenient office locations.

Source:

http://www.ilga.gov/legislation/ilcs/documents/075000050K504.htm

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