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Enforcement of Child Support: FAQ's

The court ordered my ex-spouse to pay child support, but she won't pay. How do I apply enforcement of child support?

The Child Support Enforcement Act of 1984 provides district attorneys to help you collect child support from an ex-spouse or parent who refuses to pay in accordance with a court order. Typically, the district attorney serves your ex-spouse or child's parent with papers. On these papers are instructions to meet with the district attorney in order to set up a payment arrangement. The papers say that if the person fails to follow those instructions, jail time could be imposed. This can sometimes be counter-productive, since imposing jail time means the person is not working and earning money. So, usually imposing jail time is saved as a last resort. Instead, the district attorney can impose other consequences for failure to pay child support, including:

  • Withholding federal tax refunds and using these funds to pay child support
  • Garnishing wages
  • Seizing property
  • Suspending an occupational license (license to practice medicine, license to teach)
  • Suspending a business license (license to operate a restaurant)
  • Revoking the delinquent payer's driver's license.

Furthermore, the U.S. Department of State can even deny issuance of a passport to someone who owes more than $2,500 in child support.

As mentioned, if the delinquent payer still fails to pay, the court can hold him or her in contempt of court (for failing to follow a court order) and impose a jail term. This is not used very often, because the court recognizes the main objective is to provide support for the children; the payer cannot pay child support if he or she is in jail and not earning money.

Regardless of what consequences are imposed, the fact is that you do have options if your ex-spouse or child's parent doesn't pay. There are many agencies which specialize in ensuring the enforcement of child support and do so at minimum to no cost. For a list of agencies that help with enforcement of child support, visit the National Child Support Enforcement Association at http://ncsea.org .

If my ex-spouse moved out of state, does the court's enforcement of child support still apply?
Yes. The Uniform Interstate Family Support Act (UIFSA) sets out procedures for you to be able to enforce child support upon your ex-spouse or child's parent in another state. Below is a list of your options:

  • As long as your state still has personal jurisdiction over your ex-spouse or child's parent you can ask that court to impose enforcement of child support on him or her.
  • If your state does not have personal jurisdiction over the child support payer, ask the court in your state to forward the child support order to the court of the state where your ex lives. Then have that state's courts impose enforcement of child support.
  • Go to your ex's state and file an enforcement of child support request in a court there.
  • Send the child support order to your ex's employer, and ask the employer to garnish the amounts from the ex's paychecks.

In addition to UIFSA, there are a couple of acts that penalize deadbeat parents. The Child Support Recovery Act of 1992 makes it a federal crime for a parent to refuse to pay child support to a parent living in another state. Currently, this act is under scrutiny as going beyond Congress's constitutional authority. So, Congress passed the Deadbeat Parents Punishment Act of 1998, making it a felony for a parent to refuse to pay child support to a parent living in another state.

If you cannot find your ex, but think he or she may have moved out of state, certain legal procedures can help you locate him or her and impose the enforcement of child support. Government services, both on the state and federal levels, can help you locate the missing parent.

My ex-spouse has fallen behind in child support. Can the court order my ex to pay the past due amount?

Yes. In fact, courts are very strict about the enforcement of child support. When a payer falls behind, the overdue amount is called "arrearage" and the payer is said to be "in arrears". If a payer finds him or herself in arrears, he or she can always ask a judge for a reduction of child support payments. However, only future payments can be reduced. The payer is still obligated to pay the arrearages in full, at no reduced amount, and the court will enforce such payments.

If I lost my job, can I be relieved of my child support obligations?

As mentioned, a court cannot and will not excuse overdue child support payments. However, if you lose your job, you should immediately petition the court to reduce your child support obligations. Losing a job is usually a sufficient reason for a reduction or even a stay (a short pause in your obligation to pay), since your income is a variable in the formula for calculating the support payment. Be sure not to put petitioning the court off or ignore it, because you will still be held accountable for the child support payments at the rate the court ordered and will face consequences, even jail time, if you fail to pay.

For example, Harry and Ron, both automobile mechanics, were very responsible fathers. They each had a $500 child support obligation to their ex-wives, and both of them always paid on time. One night, the repair shop they worked for burnt down and all of the mechanics lost their jobs. Harry and Ron were devastated and worried that they wouldn't be able to pay child support. Harry immediately petitioned the court to reduce his child support payments due to the fact that he had lost his job. He told the judge that he would be willing to resume the original $500 arrangement as soon as he found comparable employment. The judge stayed Harry's payments until he could find sustainable employment. Harry soon found another job with a successful auto shop and was able to resume his child support payments.

Ron, so devastated at what happened and annoyed with the family court system, ignored his child support obligations and just stopped making payments. Ron's ex-wife, Hermione, asked the court to impose enforcement of child support payments on Ron. Since Ron didn't have an income, he ignored the court's order. The judge held Ron in contempt of court and sentenced him to a jail term. When Ron got out of jail, he had no money, no job, and still faced child support payments. Had Ron been smart like Harry, he could have avoided jail and not fallen behind on his payments.

Can I name my child support arrears when I file bankruptcy?

No. Child support debt is one of those few debts that cannot be discharged by bankruptcy. Child support payments are intended to help care for children and as such are public policy issue. The public policy is meant to not allow parents to use bankruptcy to get out of providing support for their children.

My ex-spouse and I got a divorce over a year ago. If I file for enforcement of child support now, can I collect for the past year?

No. Judges tend to only enforce child support payments beginning on the date they are requested with the court. So, be sure to file for child support as soon as possible. The earliest point of permanent separation is the best time to file, so that support for your children can begin immediately.

My spouse manages all of our finances, but rarely allots me enough money for groceries and clothes for our children. Can I sue for enforcement of child support?

Probably not, unless you and your spouse live separately. Courts do not like to interfere in matters of family lifestyle. However, if the children are being abused or neglected, courts will intervene, seeking the best interest of the children. Parents are required to provide the basic needs of food, clothing, shelter, and educationto the point of age required by state law. If you show to a court that your spouse is failing to provide these basic needs, the court may intervene in the custody of the children rather than ordering the spouse provide support; so, be careful with what you complain to the court. However, there are a few cases in which the court ordered financially capable parents to financially provide for their children.

The district attorney is claiming that I am thousands of dollars in arrears, when I have always been on time, paying my ex-spouse directly. What should I do?

There are ways to avoid this predicament. The court order will specify the arrangement as to whether you should pay the court clerk or pay the custodial parent directly. Always do what the court orders. If you and the other parent work out some other arrangement, get it in writing and/or notify the court of this arrangement.

Always get a receipt for payment, whether you are submitting payment to the court clerk or to the parent directly. Do not ever pay cash. You bear the burden of proving payment, and if the other parent claims you are in arrears, you must prove otherwise.

If you did pay in cash and do not have receipts, you need to prove that you made the payments; otherwise, the custodial parent can sue you for arrearages. Any evidence you can come up with that you did in fact make the payments should be presented to the court. Witnesses, bank records showing direct deposit to the custodial parent, and letters or documents where there is an admission of receiving the payments are all good pieces of evidence to prove payment.

I just gained joint custody of my child. Will this affect my child support obligations?

Generally, no. Because joint legal custody means that both parents have authority to make decisions on the child's behalf, but does not affect the financial obligations, it has no effect on child support. Joint physical custody still carries enforcement of child support from the higher income parent to the lower income parent. This is usually determined by a sliding scale according to how much time each parent spends with the child. Unlike joint legal custody, both parents provide for the child in joint physical custody, and so, the child support obligations may be less. Regardless, the financial support to the child is the same or higher than with sole custody.

Do I still have to pay my ex-spouse child support if he keeps me away from my children?

Yes. Be sure not to confuse child support obligations with custody and visitation. They are two separate legal issues. If you have visitation rights and your ex-spouse is keeping you from them, you need to petition the court to enforce your visitation rights. That being said, every parent has an obligation to support his or her children. Keeping your children from seeing you is not an excuse for you to not pay the court ordered child support. Remember, it is what the court has ordered you to do, and not following the order could subject you to jail time. If the custodial parent disappears with your child for any lengthy period of time, the court may rule that you temporarily are excused from paying child support. Just remember, that if your ex-spouse is interfering with your visitation rights, this does not affect your legal obligation to pay child support. The proper remedy is to keep paying child support and have the court enforce your visitation rights.

Next Steps
Contact a qualified child support attorney to make sure
your rights are protected.
(e.g., Chicago, IL or 60611)

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