Domestic Support Obligations and Bankruptcy Text Size:

The amendments to the Bankruptcy Code in 2005 added strict notice requirements where the debtor has obligations under a domestic support obligation.

Definition of a Domestic Support Order

The Bankruptcy Code defines a domestic support order as a debt or obligation to pay a spouse, former spouse, parent, child, or someone on the child's behalf, including a government entity, alimony, maintenance or support under a court order or separation agreement (§ 101).

Notice Requirement

The trustee in a bankruptcy case has the duty to administer or oversee the case and to represent the interests of unsecured creditors. Unsecured creditors are creditors without collateral in the debtor's property to secure their claims, and this group of creditors includes the recipients of support orders. The amendments added in 2005 to the Bankruptcy Code, requires the trustee to provide certain notices in cases in which there is a claim with respect to the debtor for a domestic support obligation (Chapter 7, §704(a)(10) and Chapter 13, §1302(d)(1)(A)).

Where a person, such as the mother of the debtor's child or former wife, has made a claim for a debt based on a domestic support obligation, the trustee is required to:

• Provide a written notice to the claimant telling the person, a claimant, that she is entitled to use the services of the state child support enforcement agency to help in collecting the debt,
• Provide a written notice to the state child support enforcement agency of the existence of the claim against the debtor and the name, address and phone number of the claimant.
• Provide written notice to both the claimant and the child support enforcement agency at the time the debtor is granted a discharge, informing them of the discharge and the following:
  • the last known address of the debtor,
  • the last known address of the debtor's employer,
  • the name of each creditor that holds a claim that is not discharged or that was reaffirmed ( a debt the debtor agreed to remain responsible for, such as a car payment,.)

Nondischargeability of Domestic Support Obligation

It should be remembered that in the Bankruptcy Code, debts under a domestic support obligation are not dischargeable in a chapter 7 bankruptcy (11 U.S.C. § 523(a)(5)). Also not dischargeable under chapter 7 are any other obligations under section 523(a)(15) "to a spouse, former spouse, or child of the debtor that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other court order, or a determination made under state or territorial law by a governmental authority." Under a chapter 13 plan, a debtor cannot be discharged from obligations under section 523(a)(5), but may be under 523(a)(15). The differences between the two sections are slight, and it is best to check with a lawyer to know which section applies.

It does not matter whether the debts under section 523(a)(5) were incurred prior to the filing of a bankruptcy petition, or during the bankruptcy case; such debts are not dischargeable.

The domestic support obligation is defined broadly enough to include joint debts, which the debtor was ordered to pay as part of a divorce decree, and includes a divorce court's order to pay the former spouse's lawyer, as part of a divorce proceeding.

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