What happens when the obligor can not pay child support while in bankruptcy?
He or she must pay child support while in bankruptcy. Child and spousal support are what is called "priority" interests in bankruptcy and cannot be avoided. A priority interest comes before all other interests. A creditor with a priority claim has the right to have his or her claim paid before other creditors receive payment.
Some former spouses may argue that it is not fair that they cannot rid themselves of child support and alimony because these payments have pushed them into bankruptcy. But this argument does not hold up. It would be hardly fair for someone to escape support obligations through bankruptcy.
If someone were still married, still in an intact marriage with a spouse and children, he or she would not be able to satisfy creditors by saying, "Okay, I just won’t feed my kids this month," or "My wife can get by without any money at all for a few months." In other words, no one, married or divorced, can make part of a family suffer disproportionately because of debts.
The argument that child support and alimony push some former spouses into bankruptcy will not be accepted by any judge.