Enforcement of Child Support: FAQ’s

How can I enforce a child support order?

Under the Child Support Enforcement Act of 1984, district attorneys are required to help parents collect child support from the other parent who fails or refuses to pay child support according to the terms of a child support order. Generally the district attorney will serve a set of papers on the paying parent asking that parent to make the payment. If that parent still does not pay, the district attorney will prosecute the parent. The penalties for non-payment of child support can include jail term. Generally jail term is the last resort. Other methods of enforcing payment include:

• Wage garnishment
• Property Seizure
• Suspension of professional license
• Suspension of business license
• Revocation of driver’s license
• Using federal tax refunds to pay child support

The Department of State can refuse to issue a passport if the applicant owes more than $2500 in child support.

Non-payment of child support can result in contempt proceeding. If found guilty of contempt, the parent violating the order can be sent to jail. However courts generally do not go to this extent as their main objective to ensure support for the child and if the paying parent is jailed, it will prevent him or her from earning money.

There are many options to enforce a child support order. There are many agencies that provide assistance in enforcing and collecting child support, some do it for free while some charge a minimal fee. The National Child Support Enforcement Association (http://ncsea.org) can provide you with the list of such agencies.

Can a court enforce a child support order if the paying spouse moves out of state?

Yes. Under the Uniform Interstate Family Support Act (UIFSA), a child support order passed by a court in one state can be enforced in another state. If you are the recipient spouse and your paying spouse has moved out of state, here are your options:

• You can request the court to enforce the order if your state retains personal jurisdiction over the paying parent.

• In the absence of personal jurisdiction, you can request the court to forward your enforcement request to the court in the state where the paying parent is living and then enforce the order through that state’s courts.

• File an enforcement request with the court located in the state where the paying spouse has relocated to.

• Ask the paying spouse’s employer to garnish the child support amount from his or her wages.

Under the Child Support Recovery Act of 1992 refusing to pay child support to a parent living in another state is a federal crime. There is a legal challenge to this Act as it exceeds the constitutional authority of the Congress. To deal with challenge, the Deadbeat Parents Punishment Act was passed in 1998. Under this Act, it is a felony to refuse child support payments to a parent living in another state.

If you are unable to locate the other parent but you have a child support order in place, you can contact your state child support agency or other state or federal government agency to help you locate the parent and enforce the order.

Is it possible to collect past due child support?

Yes. Non-payment of child support is a very serious matter. The overdue amount is called the arrearages. The court will ask the paying parent to pay the arrearages. The paying parent can ask for reduction of the child support. The court will not reduce the arrearages but can reduce future payments if there is a considerable change in the circumstances warranting a change in the support order.

Is loss of job a valid reason for modification of child support order?

Loss of job cannot be an excuse for an overdue child support payment. If the paying parent loses his or her job, he or she should immediately file an application in court seeking modification of the child support order. Losing a job is a significant change in the circumstances to warrant a change in the order. However by not informing the court, and not making the payments, the paying spouse will be violating the order.

For example, Joel and Paul worked in a shop selling electronic items. Both of them had to pay $500 every month as child custody to their ex-wives. One night the shop burnt down leaving them without a job. Joel immediately filed an application in court asking for modification of the support order as he had lost his job. During the hearing, he informed the judge that once he is employed again, he will restart making the payments. The judge allowed the application and his obligation to pay child support was stayed until he found another job. Two months later, he landed a new job and resumed the payments.

Paul on the other hand did not make any application to the court, nor did he make the payments. His ex-wife Sherry filed an application for enforcement of the order. Paul did not have an income that could be garnished. He did not have any property either. The judge held him in contempt of court and sent him to jail. When he was released, he had no income or job but still had to pay child support. Had he done what Joel did, he would not have been in jail and he could have legally avoided the child support payments till he got another job.

Can bankruptcy discharge child support?

No. Child support is one of the debts that survive bankruptcy. The payment is for the benefit of the child and it is against public policy to allow parents to discharge their child support obligations through bankruptcy.

Our divorce was granted a year ago. Can I collect for the past year if I file for enforcement now?

No. Generally courts will enforce the support payments starting on the date you request the court. So you must file as soon as possible. The best time to file is the earliest point of permanent separation.

Can I sue for child support enforcement if my spouse who manages the finances does not give me enough money for buying clothes for our kids?

If you are staying together with your spouse, you may not be able to sue. Courts generally refrain from interfering in matters of family lifestyle. However if the children are being neglected or abused or the safety of the children are at stake, the courts generally intervene to protect the best interests of the child. The law requires parents to provide the basic needs of the child such as food, shelter, clothing and education until a certain age. If your spouse fails to provide the basic needs of the child, the court may interfere with the custody but will be reluctant to order support payments.

What can I do to prevent my spouse from making false claims that I have not paid child support?

This is a fact of life you have to deal with. Generally your support order will specify how the payment is to be made – to the court or directly to your spouse. You should make the payments as ordered by the court. If you have agreed on some other arrangement with your spouse, you should always get it in writing and inform the new arrangement to the court.

Always obtain a receipt for any payment you make whether it is to the court or to your spouse. Avoid cash payments. If you spouse claims you did not make the payment, you will have to prove the payment. Proving cash payment is difficult. If you are unable to prove the payments, you can be sued for arrearages. In such cases, you should present any evidence that you may have of having made the payment including witnesses, bank statements or other documentary evidence of receipt of the payment.

Does joint custody affect child support obligations?

Joint custody does not generally affect child support obligations. Joint legal custody does not affect financial obligations of the parents including child support. In joint physical custody, the higher income parent will generally have to pay child support to the lower income parent. However compared to other forms of custody, the child support obligation in case of joint physical custody is less.

Can a non-custodial who is denied visitation by the custodial parent stop child support payments?

No. There is no relationship between custody/visitation rights and support obligations. If the custodial parent is interfering with the visitation rights of the non-custodial parent, the non-custodial parent must move the court to enforce the visitation order. Failure to pay child support according to the child support order can result in a jail term. However, if the custodial parent moves away to another place for a long time, you can petition the court to modify the support order. Interference with visitation/custody does not affect child support obligations.

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