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Child support arrears
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Lindsey:
I love going after retirement plans for support and our attorney fees. In
this case, I think the issue is whether a 401k in husbands name is property
of the estate. Under 541(b)(7)(A)&(B) it may not be, but 401ks sometimes
have matching employer contributions, which are not included in the
definitions under (A)&(B). So there is an argument that the stay covers it.
As Dennis pointed out, what judge is going refuse to lift the stay. About
the only time I see any equities in favor the delinquent payor spouse is
when they lose their job, cannot pay support and do not understand and
cannot afford to get it modified down, so they build up a substantial
arrearage on payments they could not have made anyway, but the order is
still there and the arrearages haunt them forever.
If you have any questions or concerns, please contact me.
Pat
Patrick T. Green
Attorney at Law
Fitzgerald & Green
1010 E. Union St. Ste. 206
Pasadena, CA 91106
Tel: 626-449-8433
Fax: 626-449-0565
pat@fitzgreenlaw.com
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Pat-
Do you think that enforcement via a QDRO for back due child support against obligor's 401k might be helpful?
Lindsey B. Green, Esq.
Gumm & Green, LLP, Attorneys at Law
5743 Corsa Ave., Suite 111
Westlake Village, CA 91362
phone: 818 707 4233
fax: 818 707 4262
e-mail- Lindsey@gummandgreen.com
practice limited to family law and consumer bankruptcy
----- Original Message -----
To: cdcbaa@yahoogroups.com
Sent: Tuesday, May 14, 2013 3:09 PM
Subject: RE: [cdcbaa] Child support arrears
What collection steps has she taken? Does husband have a paycheck? Wife can get an earnings withholding order against H without violating the stay. 362(b)(2)(C).
If you have any questions or concerns, please contact me.
Pat
Patrick T. Green
Attorney at Law
Fitzgerald & Green
1010 E. Union St. Ste. 206
Pasadena, CA 91106
Tel: 626-449-8433
Fax: 626-449-0565
pat@fitzgreenlaw.com
Janet
Sent: Tuesday, May 14, 2013 12:51 PM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Child support arrears
Husband owes 70K in back child support to his ex wife. He alone files a Ch 7 and receives a discharge. His current wife then files a Ch 13, 60 month plan with no disposable income. She does not schedule his separate property debt of the $70k child support arrears.
Does ex wife have any remedy to collect child support arrears, such as
filing an objection to confirmation and ask that child support arrears be included? (I think not)
Does ex wife have to wait 5 years to begin collecting?
Is husband's back child support discharged?
Any ideas for a remedy for ex wife are appreciated.
Janet Mertes
80 Wood Road, Suite 300
Camarillo, CA 93010
(805) 987-7400
The post was migrated from Yahoo.
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What collection steps has she taken? Does husband have a paycheck? Wife
can get an earnings withholding order against H without violating the stay.
362(b)(2)(C).
If you have any questions or concerns, please contact me.
Pat
Patrick T. Green
Attorney at Law
Fitzgerald & Green
1010 E. Union St. Ste. 206
Pasadena, CA 91106
Tel: 626-449-8433
Fax: 626-449-0565
pat@fitzgreenlaw.com
The post was migrated from Yahoo.
Janet:
I would file an objection to the plan if the plan relies on any of the husband's income. 1325(a)(3) requires good faith. Not paying child support is not in good faith.
Since 362(b)(2)(B) says stay does not apply to collection from property that is not property of the estate, and income is community and therefore property of the estate, I would file a motion for relief from stay. I cannot imagine a judge that would not grant relief.
1328(a)(2) says 523(a)(5) not discharged in a 13.
d
>
> Husband owes 70K in back child support to his ex wife. He alone files a Ch 7 and receives a discharge. His current wife then files a Ch 13, 60 month plan with no disposable income. She does not schedule his separate property debt of the $70k child support arrears.
>
> Does ex wife have any remedy to collect child support arrears, such as
> filing an objection to confirmation and ask that child support arrears be included? (I think not)
> Does ex wife have to wait 5 years to begin collecting?
> Is husband's back child support discharged?
>
> Any ideas for a remedy for ex wife are appreciated.
>
> Janet Mertes
> 80 Wood Road, Suite 300
> Camarillo, CA 93010
> (805) 987-7400
>
The post was migrated from Yahoo.
Husband owes 70K in back child support to his ex wife. He alone files a Ch 7 and receives a discharge. His current wife then files a Ch 13, 60 month plan with no disposable income. She does not schedule his separate property debt of the $70k child support arrears.
Does ex wife have any remedy to collect child support arrears, such as
filing an objection to confirmation and ask that child support arrears be included? (I think not)
Does ex wife have to wait 5 years to begin collecting?
Is husband's back child support discharged?
Any ideas for a remedy for ex wife are appreciated.
Janet Mertes
80 Wood Road, Suite 300
Camarillo, CA 93010
(805) 987-7400
The post was migrated from Yahoo.
Have you considered a chapter 20?
There are many reasons to be in a 13, but if you client can convert
to seven (you know, not too much equity in a home, etc.) and stip
off the other unsecured debt, a second chapter 13 would only deal
with the nondischargeable debt.
dennis
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I recently confirmed a Chapter 13 paying $22,000 in child support arrears as priority. The Fresno County Child Support office filed a claim for $2,000 priority and $20,000 general unsecured. I contacted their attorney to find out why they filed the claim this way and they said that the $2000 for for child support owed to the mom and the $20,000 was assigned to a government unit so it must be claim as such. However, the $20,000 is not dishargeable anywayfrom what he said.
I filed a Motion for Clarification of the child support to get the court to modify the plan to say that the entire amount is priority or that it be bifurcated in Class 5 to be paid 100% as not being discharged after bk.
Today, Judge Lax is giving me a chance to further research if I can bifurcate Class 5 when a debt is non-discargeable. (I know student loans cannot be bifurcated but they are not priority at all while a portion of the child support is priority)
Any thoughts or cases to refer to.
Thank you
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I recently confirmed a Chapter 13 paying $22,000 in child support arrears as priority. The Fresno County Child Support office filed a claim for $2,000 priority and $20,000 general unsecured. I contacted their attorney to find out why they filed the claim this way and they said that the $2000 for for child support owed to the mom and the $20,000 was assigned to a government unit so it must be claim as such. However, the $20,000 is not dishargeable anywayfrom what he said.
I filed a Motion for Clarification of the child support to get the court to modify the plan to say that the entire amount is priority or that it be bifurcated in Class 5 to be paid 100% as not being discharged after bk.
Today, Judge Lax is giving me a chance to further research if I can bifurcate Class 5 when a debt is non-discargeable. (I know student loans cannot be bifurcated but they are not priority at all while a portion of the child support is priority)
Any thoughts or cases to refer to.
Thank you
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The post was migrated from Yahoo.