Legal Question in Bankruptcy in California

child support arrearages and bankruptcy

Man gets sued for paternity/support. No previous support, marriage or paternity established or claimed. According to the Visness vs ?? case "Child Support Arrearages" as California law terms them -are- discharagable in bankruptcy because they cannot be "support" because there was no paternity established at the time that these arrearages are supposed to cover. Are there any other cases supporting this idea in Bankruptcy court and/or support cases.

Asked on 7/09/99, 12:57 am

1 Answer from Attorneys

Marcus G. Tiggs Slate and Leoni, A Professional Corp

Re: child support arrearages and bankruptcy

In re Visness, 57 F 3d 775 (9th Cir. 1995) is a bankruptcy case. However, the issue surrounded whether debt owed to County for AFDC benefits paid was dischargeable. The lower court said yes, and on appeal it was affirmed.

The Court of Appeals, held that: (1) under California law, right to support from noncustodial parent does not accrue to child in custody of parent and is, therefore, not assignable until court decree or agreement establishes noncustodial parent's support duty, and (2) because no right of support had accrued in favor of spouse or children at time spouse executed assignment in favor of county, debt created by assignment was dischargeable in Chapter 7 case.

However, the ruling of Visness was effectively supperceded by statute (i.e. The Welfare Reform Act which added 523(a)(18), and amended amended 42 U.S.C. 656(b). Hence, cases subsequent to Visness, and the Welfare Reform act, with identical facts as Visness have found that public assistance reimbursement constitutes a debt "in the nature of support" and is nondischargeable under 11 U.S.C. 532(a)(18).

I am a Certified Specialist, Bankruptcy Law, California State Bar. We offer free consultations.

Hope this helps.

Marcus G. Tiggs, Esq.


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Answered on 7/12/99, 11:31 pm

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