Behind on Child Support in Florida? What Chapter 13 Can and Cannot Do About the Arrears

Nobody files bankruptcy to get out of child support. Federal law does not allow it, and a Florida bankruptcy judge would not entertain it. People file bankruptcy while behind on child support because everything else, the credit cards, the car loan, the medical bills, the old judgment, has made it impossible to catch up. Chapter 13 is built for that situation, and it works better than most parents expect.

Support is a "domestic support obligation," and that phrase controls everything

The Bankruptcy Code calls child support, alimony, and similar obligations a domestic support obligation, defined at 11 U.S.C. § 101(14A). Every rule that follows flows from that label:

• It is never discharged. 11 U.S.C. § 523(a)(5) excludes domestic support obligations from discharge in Chapter 7 and in Chapter 13. The arrears survive whatever else your case eliminates.
• It is a first-priority debt. Under 11 U.S.C. § 507(a)(1), support arrears are paid ahead of taxes, ahead of the trustee's other administrative claims, and ahead of every unsecured creditor.
• The automatic stay mostly does not apply to it. 11 U.S.C. § 362(b)(2) lets a support case be established or modified, lets an income deduction order keep running, lets the state intercept a tax refund, and lets it suspend a driver's, professional, or recreational license, all while your bankruptcy is pending.

So filing does not freeze the Florida Department of Revenue's Child Support Program. What it does is give you a court-supervised way to pay the arrears that the Department, the other parent, and the family court all have to respect.

What the Chapter 13 plan must do with the arrears

A Chapter 13 plan cannot be confirmed unless it pays priority claims in full over the life of the plan. 11 U.S.C. § 1322(a)(2) applies that rule to support arrears. If you owe $12,000 in back support, the plan pays $12,000, spread across 36 to 60 monthly payments, through the Chapter 13 trustee, with the Department or the other parent filing a priority claim for the amount.

Two more requirements sit on top:

1. You must stay current on ongoing support after you file. 11 U.S.C. § 1325(a)(8) requires it for confirmation, and 11 U.S.C. § 1328(a) requires you to certify that every post-petition support payment has been made before the discharge is entered. Fall behind on current support during the plan and the case fails.
2. The income deduction order keeps running. If your employer is already withholding under Fla. Stat. § 61.1301, that withholding continues for the current amount. The plan payment through the trustee covers the arrears.

There is one relief valve. 11 U.S.C. § 1322(a)(4) allows a plan to pay less than the full arrears when the claim has been assigned to a governmental unit (typically when the other parent received public assistance) and the plan commits all of your projected disposable income for the full five years. That is a narrow exception and it never applies to support still owed directly to the other parent.

Why parents do this anyway

If the arrears must be paid in full, what does Chapter 13 buy you? Four things.

The contempt hearing loses its teeth. A family court judge deciding whether to hold you in contempt for non-payment is looking for willfulness and ability to pay. A confirmed federal plan that pays every dollar of the arrears on a schedule, funded by a trustee deducting from your paycheck, is the strongest evidence of good faith available. Most Florida family courts continue or close the contempt proceeding once the plan is confirmed and payments are flowing.

The rest of your debt stops competing with your kids. The plan's unsecured creditors, credit cards, medical bills, personal loans, get whatever is left after support, taxes, and the car. Often that is very little. The money that was going to Capital One goes to the arrears instead.

Wage garnishments for other debts stop. A judgment creditor's garnishment does not survive the automatic stay. That alone can free up the 25 percent of disposable earnings a creditor was taking.

The plan can catch up the mortgage or the car at the same time. Support arrears, a mortgage default, and a car loan can all be cured inside the same plan, which is something no state court order can do.

Chapter 7 is the other option, and sometimes the better one

If you do not have a house or car to save and the arrears are the only priority debt, Chapter 7 may be simpler. It does not touch the support obligation, but it eliminates the unsecured debt in about four months, and the income that was servicing that debt becomes available for the arrears. The Department of Revenue's collection tools all remain in place, so this only works if you can actually pay the arrears once the other debt is gone.

Frequently asked questions

Will Chapter 13 get my Florida driver's license back? Not automatically. License suspension for unpaid support is excepted from the stay. In practice, the Department of Revenue will usually agree to reinstatement once a confirmed plan is paying the arrears, and that agreement is something to negotiate at the same time the plan is filed.

Does the other parent have to agree to the plan? No. The other parent (or the Department, if the claim is assigned) files a proof of claim for the arrears and receives payments through the trustee. They can object if the plan does not pay the arrears in full, and they will win that objection. They cannot object to a plan that does.

What about the interest on the arrears? Florida support judgments accrue statutory interest. The priority claim generally includes interest accrued through the filing date. Whether post-petition interest must be paid through the plan depends on the district and the trustee, and it is a question to settle before confirmation rather than at discharge.

The free Florida means test calculator tells you in three minutes whether Chapter 7 or Chapter 13 fits your income, which is the first question in any support-arrears case.