Just because a noncustodial parent has been ordered by the court to pay child support it doesn't necessarily mean they actually will. Sometimes it's necessary for the custodial parent to take further action in order to get paid on time. Below are answers to some of the most frequently asked questions about the enforcement of child support.
My ex won't pay court-ordered child support, so what can I do?
The Child Support Enforcement Act of 1984 allows district attorneys to help you collect court-ordered child support from a parent who refuses to pay. Typically, the district attorney serves the child's parent with papers, telling them to meet with the district attorney in order to set up a payment arrangement. The papers also warn that if the person fails to follow those instructions, jail time could be imposed. This can sometimes be counter-productive, since that parent can't earn money while in jail. For this reason, jail time is usually used as a last resort. Instead, the district attorney can impose other consequences for failure to pay child support, including:
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 that parent 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, however, because the court recognizes that the main objective is to provide support for the children, which is hard to do from a jail cell.
Regardless of what consequences are imposed, the fact is that you do have options if your ex doesn't pay child support. In fact, the National Child Support Enforcement Association provides a list of agencies to help with child support enforcement.
Does the court's enforcement of child support still apply if my ex moves out of state?
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. Congress also 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 can't find your ex, but think he or she may have moved out of state, certain legal procedures can help you locate the parent and enforce child support payments.
Can the court order my ex to pay past due support?
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, which means that the payer is still obligated to pay the arrearages in full.
If I lost my job, can I be relieved of my child support obligations?
As mentioned, a court won't 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. Make sure you don't delay in petitioning the court, however, because you'll still be held accountable for the child support payments at the rate the court ordered and will face consequences if you fail to pay the court-ordered amount.
For example, Harry and Ron, both automobile mechanics, were very responsible fathers. They each had a monthly $500 child support obligation to their ex-spouses, and both of them always paid on time. One night, the repair shop they worked for burned 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 since he was unemployed, and 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, Hermione, asked the court to enforce Ron's child support payments since he ignored the court's order and, as a result, 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 my child support "arrears" be discharged if I file for bankruptcy?
No. Child support debt is one of the few debts that can't be discharged by bankruptcy because of the public policy preventing parents from using bankruptcy to get out of providing support for their children.
My ex and I got divorced over a year ago. If I file for 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, which is usually when the parents have permanently separated.
My spouse manages all of our finances, but rarely gives 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 don't like interfering with matters of family lifestyle; however, if the children are being abused or neglected, courts will intervene to seek the best interest of the children. Be aware that if you show a court that your spouse is failing to provide your children with basic needs, the court may intervene in the custody of the children rather than ordering the spouse provide support.
The district attorney claims that I am thousands of dollars in arrears, even though I always pay my ex directly and on time. 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.
Don't pay in cash and always get a receipt for payment, whether you are submitting payment to the court clerk or to the parent directly. Remember that you bear the burden of proving payment, and if the other parent claims you are in arrears, you must prove otherwise.
If you paid in cash and don't have receipts, you need to prove that you made the payments; otherwise, the custodial parent can sue you for arrearages. Witnesses, bank records showing direct deposit to the custodial parent, and letters or documents where there's an admission of receiving the payments are all good pieces of evidence to prove that you paid child support.
I just gained joint legal custody of my child. Will this affect my child support obligations?
Generally, no. Joint legal custody means that both parents have authority to make decisions on the child's behalf, but doesn't affect financial obligations, so 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, and is usually determined by a sliding scale according to how much time each parent spends with the child.
Do I still have to pay my ex child support if he keeps me away from my children?
Yes. Be sure not to confuse child support obligations with custody and visitation, which are separate legal issues. If you have visitation rights and your ex is keeping you from your child, 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, so being kept away from your children is not an excuse to not pay court-ordered child support. With that being said, if the custodial parent disappears with your child for any lengthy period of time, the court may rule that you're temporarily excused from paying child support. But, the proper course of action is to keep paying child support and have the court enforce your visitation rights.
Get Help Enforcing your Child Support Orders: Talk to an Attorney
If your child's parent isn't complying with existing child support orders, you have a number of options. Waiting for him or her to have a revelation and provide support isn't at the top of that list. Get help enforcing child support orders so that your child can get the support that he or she is entitled to under the law. A great first step to learn more about your options is to consult with an experienced family law attorney near you.