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“ Craig D. Robins, Esq., has been a practicing Long Island bankruptcy attorney for over twenty-four years ”
Written by Craig D. Robins, Esq.I received a disturbing call from one of my Long Island Chapter 7 bankruptcy clients tonight. Several weeks ago I filed his bankruptcy petition and he wanted me to fax someone a copy of the official court notice of his bankruptcy filing.
When I asked him why, he said that his ex-wife had just sued him in Family Court over support and maintenance issues.
He then said that he had just retained a family law attorney who advised him that the bankruptcy stay would stop the Family Court suit. The client also said that according to his new, family law counsel, sending the ex-wife a copy of the bankruptcy notice of filing would be effective in staying the Family Court hearing scheduled for next week.
Wrong. Wrong. Wrong. It seems that the family law attorney does not understand bankruptcy law involving how the automatic bankruptcy stay works.
The Automatic Bankruptcy Stay Does Not Stop Most Family Court Matters
Generally, the automatic bankruptcy stay, which is provided by Bankruptcy Code section 362(a), stops any activity of any kind to collect a debt. However, section 362(b) provides for certain exceptions, especially most actions involving Family Court matters and domestic support obligations.
Thus, there is no protection in bankruptcy court from the obligations imposed by a Domestic Support Obligation. Here’s what Bankruptcy Code section 362(b)(2)(A)(ii) says:
The Automatic Stay created by a bankruptcy filing bars the commencement or continuation of most legal proceedings, but it has no effect on a proceeding for —
- the establishment of paternity,
- the establishment or modification of an order for a Domestic Support Obligation such as child support,
- the determination of child custody or visitation issues, or
- the dissolution of marriage, except to the extent that such proceeding may seek to determine a division of marital property in which the bankruptcy estate also has an interest. In this instance, the divorce can be granted without first obtaining relief from the Automatic Stay, but the marital property cannot be divided without obtaining such relief.
The Automatic Stay also does not prevent the post-petition collection of Domestic Support Obligations such as alimony or child support —
- from any property belonging to the debtor, providing that the bankruptcy estate does not also have an interest in said property,
- from automatic wage deduction orders created by a statute or judicial or administrative order,
- from the interception of debtor’s federal or state income tax refunds, or
- from the withholding, suspension or restriction of a debtor’s driver’s license or professional or occupational license.
Thus, there is no protection in bankruptcy court from the obligations imposed by a Domestic Support Obligation.
