Can attorney fees related and included in child support wage assignment be discharged in bankruptcy?
Full Question:
Answer:
In cases filed on or after October 17, 2005, a discharge under Chapters 7,
11, 12, and 13 does not discharge an individual debtor from any debt for a domestic-support obligation.
The term "domestic-support obligation" means a debt that accrues before, on, or after the date of the order for relief in a case under the Bankruptcy Code, including interest that accrues on that debt as provided under applicable non-bankruptcy law, that is:
(1) owed to or recoverable by a spouse, former spouse, or child of the debtor or such child's parent, legal guardian, or responsible relative; or a governmental unit;
(2) in the nature of alimony, maintenance, or support (including assistance provided by a governmental unit) of such spouse, former spouse, or child of the debtor or such child's parent, without regard to whether such debt is expressly so designated;
(3) established or subject to establishment before, on, or after the date of the order for relief in a case under the Bankruptcy Code, by reason of applicable provisions of a separation agreement, divorce decree, or property settlement agreement; an order of a court of record; or a determination made in accordance with applicable non-bankruptcy law by a governmental unit; and
(4) not assigned to a nongovernmental entity, unless that obligation is assigned voluntarily by the spouse, former spouse, child of the debtor, or such child's parent, legal guardian, or responsible relative for the purpose of collecting the debt.
A Chapter 12 or 13 debtor who is required by judicial or administrative order or by statute to pay a domestic-support obligation must, in order to obtain a discharge, certify that all amounts payable (including amounts due pre-petition to the extent that they were provided for by the plan) have been paid. Generally, a divorce court's award of attorney's fees in connection with an alimony, maintenance, or support decree is considered to be in the nature of alimony, maintenance, or support and thus excepted from discharge. Such fee awards are also considered support on the ground that the recipient spouse has received a direct benefit in that the recipient would otherwise have to pay the fees personally.
An award of attorney's fees for representation after the marriage has been dissolved may also be in the nature of non-dischargeable spousal support, at least if the award is sufficiently and directly related to a primary support obligation. Thus, an award of attorney's fees for enforcement of a divorce decree may be non-dischargeable as maintenance or support. Court-ordered attorney's fees arising from post-divorce custody actions may also be in the nature of support as being incurred on behalf of the child, and are thus non-dischargeable.
Where only the debtor is personally liable for such fees, there is no debt to a spouse, former spouse, or dependent, and the debt for the legal services is not excepted from discharge by that provision.
Attorney's fees in the nature of payments for maintenance or support of a former spouse or child of the debtor are dischargeable under even if payable to the attorney rather than the former spouse.
