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I pay child support and/or spousal maintenance. How does that affect my case?

Child support and spousal maintenance (alimony) are called Domestic Support Obligations or “DSO’s” in bankruptcy, and these claims receive special treatment. Domestic support obligations are not dischargeable under any chapter. Regardless of chapter, the trustee in your case is required to notify the recipient of maintenance or support payments that you have filed for protection under the Bankruptcy Code.

There is an exception to the automatic stay that permits your ex to bring or continue a case to establish or modify a DSO. There are also exceptions to the automatic stay that permit collection of DSO’s in chapter 7 by (i) wage garnishment; and (ii) from property acquired after filing for chapter 7 relief. During the chapter 7 case, the automatic stay prohibits collection of a DSO from prepetition (i.e., pre-filing) property.

In chapter 13 cases, prepetition support or maintenance amounts must be paid back under the plan, and here the automatic stay protects you from the collection of these amounts outside of bankruptcy. These claims are afforded first priority in repayment over all other claims. In order to confirm a chapter 13 plan, you must be current and commit to remain current on your DSO’s. (Before the plan can be confirmed, the bankruptcy judge will swear you in and inquire whether you can remain current on these payments while also making plan payments to the chapter 13 trustee.) Failing to pay a postpetition DSO will result in dismissal of your chapter 13 case if your ex or the trustee files a motion to dismiss.

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