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My husband and I had to file ch. 13 bankruptcy. Since then, we have decided to terminate our marriage. In our ch.13 filing, all the repayment comes from his pay. I am paying an equal amount in our home mortgage. He is now saying that the amount he is paying for the ch. 13 will count as child support. Is this true?
Nope. Child support is an entirely different issue and is resolved (I believe) before his BK payment.
Which is to say that the Bk payment and home will be split according to the dissolution agreement. Child support is assessed seperetly with no bearing to debt.
In other words, common usage would say that you will sell the house and split the proceeds. You would split the BK payment and any other debts. He would then be assessed child support based on his gross (pre tax) pay.
In the real world, how the assets are divided are a negotiation. Child support is not. :)
It is possible if he is paying it on your behalf and so long as the courts sign off on it. Under normal cirumstances the assets as well as the debt is split between the 2 parties. If he can show that the child would benefit from the debt repayment then that amount could be discounted if he were to take on a greater portion.
That would be an argument I would love to hear... how a child benefits from his parent's BK discharge. :)Quote:
Originally Posted by califdadof3
This seems to be an accounting distinction. If the BK is $500 and that gets split, each gets $250. Now support is assessed... I suppose for simplicity sake, husband can pay the full $500 and pay Child Support - $250... but that's just to limit the check writing. Technically they have nothing to do with each other.
Thanks. He has already begun paying the bk, and I am paying the SAME amount in our mortgage. The child support will be decided WELL AFTER the bk. That is where the questions are. He says that I should pay have of the bk, but he does not want to pay half the mortgage (which would be silly the way we are doing it is 50-50 anyway).
Yes and no. The way it seems is not always clear. If you were to gain the house in the divorce then by rights you should be making the payments on it yourself. The debt is an issue TBD ( to be determined ) there needs to be a trade off somewhere. The debt if being paid on per the order of the court would reduce the household income by that amount. Having the mortgage you would be entitled to deduct it from your taxes thereby increasing your household income. So its up to the judge and the local laws of your state to decide how everything applies. BK is normally done in a federal court so those orders may have some bearing on your case.Quote:
Originally Posted by lightweight
We can't really predict how the courts would order anything without knowing all the related facts and that's for the courts not the internet.
Bankruptcy law is extremely complicated. I've represented people in Ch. 13 cases and, even as a Certified Family Law Specialist, the interplay between bankruptcy law and family law is difficult for me.Quote:
Originally Posted by lightweight
Once a BK is filed the family law court loses jurisdiction (temporarily) over division of property and allocation of debt. Since Ch. 13 cases can last up to 5 years, you have to get relief from the automatic stay to proceed in family law court with division of property, etc. Bk's generally have no effect on child support and the stay doesn't apply to child support enforcement. I believe child support arrears would be paid (in full, with interest) out of the Ch. 13 plan, but not ongoing support. That would still be paid by wage assignment. Nor would the ch. 13 have any impact on setting child support (i.e. what it would be--your state CS guideline would still apply).
I'm not sure what your spouse means that the amount he is paying into the plan "counts as child support." What exactly he is talking about? With more details I could provide a better answer.
To add to what I said before, you apparently filed a joint Ch. 13 petition and it appears you have a confirmed Ch. 13 plan. Now you want to get divorced. Additionally, you are paying the mortgage outside of the plan (there's a ch. 13 plan payment that covers arrears plus interest on the home mortgage plus a lot of other stuff but the current mortgage payment is being paid directly to the lender). In many state BK Courts, like some of those in California, you cannot do it that way any longer (at one time you could). For example, in California you have to pay everything- even current mortgage payments-- into the plan. So anyway, he's making the plan payment, you are paying the home mortgage. Do you live together or separately? If you've separated then yes, I would say you have to split the plan payment but whoever has use of the house should pay the ongoing mortgage. So much for that.
As for child support, you are entitled to it if you have kids with you and are living separately. You probably have to apply for relief from the automatic stay to get it now (I'm assuming there is no cs order in effect currently). You need to verify this but this is my "educated guess". But, having said that, the problem now is getting child support will upset the plan payment because after a support order is made his budget and yours will change and you may not be able to afford the Ch. 13 plan any longer (which could result it the case being dismissed and you losing the house). And he will surely need to apply for a modification of the plan if you seek support. If you are going to divide property and allocate debt that is going to affect your Ch. 13 case as well and you may need to coordinate any agreement you have on those issues into a modification motion you might wish to make with the Bankruptcy Court. In fact, if you both are living separately and apart, you both may need to join in the modification motion since it was a joint filing. There's another issue I don't know the answer to and that is, can you terminate marital status (i.e. can you get divorced) and still maintain the joint Ch. 13 case and continue it to its conclusion? My hunch is probably. But I'd have to check it out. And next, who pays what share of the plan payment post-divorce? That may need to be part of a motion for modification.
As I said earlier this is a VERY complicated area of law and far too complex for this board. This is tough for me and I'm an attorney who has represented people in Ch. 13 cases before and I'm a Certified Family Law Specialist in California.
Consult with an experienced bankruptcy lawyer and a family law attorney in your state and have both work together to decide what is best.
One correction to what I said above, you do NOT need to obtain relief from the automatic stay to request and obtain an order for child support or spousal support (11 USC section 362(b)(2)(A)(ii)). You can do that now (assuming you otherwise qualify for support in your jurisdiction) but as I said getting a support order will change your husband's budget and yours and this may have an impact on the feasibility of your Ch. 13 Plan. This whole thing can get messy pretty fast so you really need to consult with both bankruptcy and family law counsel.
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