Forthcoming, 113 California Law Review (2025)
Vanderbilt Law Research Paper No. 24-30

Available at: https://ssrn.com/abstract=4878756 

Summary:

Past-due child support debt cannot be forgiven, or discharged, in bankruptcy. This policy is grounded in the assumption that all child support debt goes to a parent taking care of a child. However, billions of dollars of unpaid child support debt are not owed to the parent, but instead to the government. The government is owed this debt through a welfare cost recovery system which requires custodial parents that file for welfare benefits to pursue child support from noncustodial parents and assign those rights to the government. This debt, which I coin “welfare debt,” oftentimes results in an increased interaction with the criminal justice system, including a cycle of incarceration and criminal fines and fees. The individuals that are stuck in this welfare debt-incarceration cycle follow recognizable racial and socioeconomic lines of vulnerability and marginalization. For the bankruptcy system to uphold its normative principle of forgiving burdensome debt for the most economically vulnerable individuals, welfare debt must be forgiven.

Commentary:

This article pairs with and continues the discussion of more generally discharging government debt by Prof. Langston in Discharging Government Debt.

Unmentioned, however, in this article is that pursuant to 11 U.S.C. § 1322(a)(4), a Chapter 13 may provide that domestic support obligations (DSO) assigned to a government unit under 11 U.S.C.  §507(a)(1)(B), while remaining priority and non-dischargeable claims, need not be paid in full or at all during the 60-months of the case.  This falls well short of the author’s argument for allowing the discharge of these assigned DSO claims held by government units on the same terms as taxes, but it does often allow a debtor, without harm to his or her children, to defer repayment of these amounts to the government for as long as five years, which may afford time to both resolve the other debts (usually secured claims for mortgage arrearages or delinquencies on vehicle loans) and hopefully see an increase in the debtor’s income.