How Filing bankruptcy Can Help In Divorce to Keep You Out of Jail
Chapter 13 bankruptcy does NOT stay child support, as no child support is dischargeable in bankruptcy. However it does stay (until they get relief from stay) the filing of contempts to collect the child support.
Given the incompetence of most divorce lawyers I am betting some will not file for relief of stay, or succeed in this. In my case the CS amount included in my bankruptcy plan was $150 per week and they are now trying to get $300 per week (which is 89% of my take-home pay currently and illegal under federal garnishment limits). I am hoping that the bankruptcy judge would not grant a relief from stay for an increase in CS because it will make the bankruptcy plan not work, and because the bankruptcy court will NOT hear temporary orders. They will only hear final judgments.
As a result of this you can lock in child support and any financial orders with bankruptcy because any other temporary orders for financial purposes are "out of jurisdiction". You can not tell them this and wait to delay things further (as I did when the contempt was filed to delay CS collection for 7 months) or you can point it out sooner if you like. I think forcing the spouse to make their own living is a good thing for her and the children too so they can spend more time with me.
Appropriate legal references to anyone that wishes which made my wife's attorney withdraw the contempt.
Chapter 13 Title 11 USC
Automatic stay is 11 USC, section 362
Income is property of the bankruptcy estate is 11 USC section 1306(a)
Hope this helps someone else out there.
This does NOT apply to a Chapter 11 or 7 filing.
New bankruptcy laws may have differences and should be checked.
One more clarification. a judge can just indict you on criminal contempt to circumvent the stay. Additionally collection through the use of an IWO is exempted entirely from the stay. Only civil enforcement for the arrearage is stayed. The continuing obligation post petition would not be subject to any stay. additionally, since there would be an arrearage you would have to include the arrearage payment and the current payment in the Ch 13 plan or face a conversion to a chapter 7.
Exemptions from the automatic stay. Under C it is unclear if they can still create it or if it applies to an existing IWO only. For anyone with websites make sure that this information is available online.
(B) of the collection of a domestic support obligation from property that is not property of the estate;
(C) with respect to the withholding of income that is property of the estate or property of the debtor for payment of a domestic support obligation under a judicial or administrative order or a statute;
(D) of the withholding, suspension, or restriction of a driver's license, a professional or occupational license, or a recreational license, under State law, as specified in section 466(a)(16) of the Social Security Act;
(E) of the reporting of overdue support owed by a parent to any consumer reporting agency as specified in section 466(a)(7) of the Social Security Act;
(F) of the interception of a tax refund, as specified in sections 464 and 466(a)(3) of the Social Security Act or under an analogous State law; or
(G) of the enforcement of a medical obligation, as specified under title IV of the Social Security Act;