What is Relief from Stay and Do I Need it to File a Petition to Modify Child Support or Alimony?

Posted by Kevin Ryan | Aug 13, 2016 | 0 Comments

Title 11 United States Code Section 362

The automatic stay is an order issued by the United States Bankruptcy Court immediately upon the filing of a bankruptcy petition.  The order is automatic because the debtor is not required to petition the court for this relief.   The automatic stay is set out under Title 11 of the United States Code, Section 362.  11 U.S.C., Section 362.   The automatic stay prohibits creditors or their representatives from taking any action which affects the debtor's property, income or wages.  The debtor's property, income and wages are part of what is commonly referred to as the bankruptcy estate.   The automatic stay is sort of like a legal force field, protecting the property behind it from being breached by outside parties.  Court permission is always required to obtain relief from the Stay Order.   Relief from the automatic stay order can be obtained by the filing of a motion with the Court, or by agreement of the debtor and a specific party, with the consent of the assigned bankruptcy trustee.   In an agreed relief from stay petition, the bankruptcy court will usually grant such a motion without a hearing, but retains the power to do so.  

Exception for Establishment or Modification of Domestic Support 

The automatic stay statute 11 U.S.C., Section 362 under section (b)(2) carves out an exception for proceedings to establish or modify a child support or spousal support order.   In some jurisdictions, including the Alabama Southern District, a motion is still required to obtain relief from the automatic stay order to establish or modify a child or spousal support order.  The Court will charge a filing fee for a motion for relief from stay, and the current applicable fees are posted on the bankruptcy court's website.  U.S. Bankruptcy Court, Southern District of Alabama website    The bankruptcy court will issue an order granting the motion for relief from stay so long as it is warranted or agreed to by all affected parties.  The movant is responsible for completing service of the motion upon all affected parties.   

If you have further questions about filing a motion for relief from stay, or the bankruptcy process in general... Call me. I'll BE there for you. 

About the Author

Kevin Ryan

"I'll never be the kind of attorney your creditors want me to be. I'll always be the kind of attorney you NEED me to be. Call me. I'll BE there for you. And I'll make them go away."  -Kevin Ryan, Attorney at Law Kevin Ryan is a graduate of the College of Wooster and the Cleveland Marshall College of Law. He is admitted to practice before all Alabama State Courts, the United States District Court for the Southern District of Alabama, and the United States Bankruptcy Court for the Southern District of Alabama. The United States Bankruptcy Court is a part of the United States District Court. Since 1998, Mr. Ryan has represented thousands of individual clients in bankruptcy, criminal, divorce, probate, personal injury, and real estate matters.  Attorney Ryan is also a licensed real estate agent in Alabama.  He handles  Bank-owned properties, short sales, and conventional sales in addition to conventional real estate listings.   This wide range of experience enables Attorney Ryan to take a wider look at your legal matter. It is important to consult with an attorney who can see from experience how other legal issues may affect your situation, and advise you accordingly. Personal Info Kevin Ryan is a member of First Baptist Church in Silverhill, Alabama. He resides in Silverhill with his wife Jessica and their three children. Committed to helping our Clients achieve a fresh financial start Our practice focuses primarily on consumer bankruptcy matters under Chapter 7 and Chapter 13 of the United States Bankruptcy Code.  Our law practice also includes matters where bankruptcy litigation, appellate work, or involvement in civil lawsuits is needed by a client.     No representation is made that the quality of any of these legal services is of higher quality than another attorney or law firm.   The United States Bankruptcy Code requires the following notice:  We are a Debt Relief Agency, which means we help people get legal relief from their Debts through the bankruptcy process. Interested in learning more about our bankruptcy attorney near Mobile, Alabama? Contact Us for help with chapter 7 bankruptcy or chapter 13 bankruptcy in Mobile, Baldwin and Washington counties. Education Juris Doctor, Cleveland Marshall College of Law, 1997 Employed full time as a paralegal while attending law school in the evenings. B.A., The College of Wooster, 1994 NCAA Div.III All Conference (N.C.A.C.) Football Team : Defense 1993; Most Inspirational Senior Award 1993; Co-captain 1993; Letterman 1991-1993; Phi Sigma Alapha Fraternity 1991-1994; Athletic Director Jurisdictions Admitted to Practice Alabama

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I'll BE there for you.

I'll never be the kind of attorney your creditors want me to be. I'll always be the kind of attorney you NEED me to be. Call me. I'll BE there for you. - Kevin Ryan, Attorney at Law

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