Domestic Support Obligations in Chapter 13

The Absolute Rule: DSOs Are Never Dischargeable

Section 1328(a)(2) incorporates Section 523(a)(5), which excepts domestic support obligations from discharge. This exception applies to the full Chapter 13 discharge under 1328(a), the hardship discharge under 1328(b), and every other chapter of bankruptcy. There are no exceptions, no workarounds, and no circumstances under which a domestic support obligation can be discharged.

This is one of the strongest protections in the Bankruptcy Code. Congress made a deliberate policy choice that obligations to support a former spouse and children take absolute priority over the debtor's desire for a fresh start.

What Qualifies as a Domestic Support Obligation

The Bankruptcy Code defines "domestic support obligation" (DSO) in Section 101(14A). To qualify, the debt must meet all of these criteria:

• Owed to or recoverable by a spouse, former spouse, child, child's parent or legal guardian, or a governmental unit
• In the nature of alimony, maintenance, or support
• Established or subject to establishment by a separation agreement, divorce decree, property settlement agreement, court order, or governmental determination
• Not assigned to a nongovernmental entity (unless voluntarily assigned for collection purposes)

Even the Chapter 13 "superdischarge" -- which allows Chapter 13 to discharge certain debts that survive Chapter 7 -- does not touch domestic support obligations. DSOs are carved out of every discharge provision in the Code.

DSOs as Priority Claims Under Section 507(a)(1)

Domestic support obligations are not just nondischargeable -- they are first-priority claims under Section 507(a)(1)(A). This has major implications for how they are treated in a Chapter 13 plan:

• Must be paid in full -- The plan must provide for full payment of all allowed DSO claims. Section 1322(a)(2) requires that the plan provide for full payment of all priority claims unless the holder agrees to different treatment.
• Paid before general unsecured creditors -- DSOs take priority over credit cards, medical bills, personal loans, and all other general unsecured claims.
• Paid before administrative expenses in some cases -- DSO claims assigned to a governmental unit have super-priority even over the Chapter 13 trustee's commission.

In practical terms, this means a Chapter 13 plan must include enough funding to pay all pre-petition DSO arrears in full over the life of the plan, on top of current DSO payments that continue outside the plan.

The Ongoing Obligation During the Plan

Filing Chapter 13 does not pause your domestic support obligations. You must continue making current DSO payments throughout the plan. These current payments are typically made directly to the recipient (or the state child support enforcement agency), not through the Chapter 13 trustee.

Pre-petition arrears -- the amount you owed before filing -- are different. Those arrears are treated as a priority claim in the plan and paid through the trustee along with other plan payments.

This creates a practical challenge for many Chapter 13 debtors. The plan payment and the current DSO payment are both mandatory, and together they may consume most of the debtor's disposable income. If the debtor's income drops during the plan, the DSO cannot be reduced by the bankruptcy court -- that requires a separate motion in family court.

The Discharge Certification Requirement

Before the court will enter a Chapter 13 discharge under Section 1328(a), the debtor must file a certification (typically using Official Bankruptcy Form 2830) stating that all domestic support obligations that became payable on or before the date of the certification have been paid. This includes both pre-petition arrears (paid through the plan) and post-petition current obligations (paid directly).

If the debtor cannot certify that all DSOs are current, the court will not enter the discharge. The case may remain open, be dismissed, or the debtor may seek a hardship discharge under Section 1328(b) -- but even the hardship discharge does not discharge the DSO itself.

Property Settlement vs. Support: The Critical Distinction

Divorce decrees and settlement agreements often contain two types of obligations: support obligations (DSOs) and property settlement obligations. The distinction matters enormously in bankruptcy.

This distinction is one of the most important remaining advantages of the Chapter 13 superdischarge. If a divorce decree orders the debtor to pay a former spouse $50,000 as a property equalization payment, that debt survives Chapter 7. But if the debtor completes a Chapter 13 plan, the property settlement obligation can be discharged.

The characterization of a divorce obligation as "support" versus "property settlement" is a factual determination that looks beyond the labels used in the decree. Courts examine factors including:

• The intent of the parties and the state court
• Whether the obligation terminates on death or remarriage of the recipient (support typically does; property settlement does not)
• Whether the amount is fixed or varies with income (variable amounts suggest support)
• Whether the obligation is for necessities versus asset division
• The relative financial positions of the parties at the time of divorce

If there is any ambiguity about whether an obligation is support or property settlement, expect litigation. Creditors have strong incentives to characterize obligations as support (nondischargeable everywhere), and debtors have strong incentives to characterize them as property settlement (dischargeable in Chapter 13).

Frequently Asked Questions