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

Serving Families Throughout Mobile

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.

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