What happens when child and spousal support is not paid?

By Marissa A. Oxman, Esq.

 

Failing to follow a court order should always be taken seriously.  But it is especially serious when the order is a California order for child and spousal support.  California law requires child support be paid before any other debt (before the mortgage, credit card, or car payment), and California is one of the strictest states when it comes to enforcing support orders and punishing failure to follow them.  But, nothing happens automatically.  Spouses and parents need to ask that the orders be enforced.  Below are some of the consequences and enforcement mechanisms.

 

Collection options:

Child support and/or spousal support –

  • Motion for Determination of Arrears – This is a request that the Court determine exactly how much support has not been paid. When there is a disagreement about the amount owed, this motion needs to be filed before the outstanding payments can be collected.
  • Wage Assignment Orders (a.k.a. Wage Garnishment, Earnings Assignment, and Income Withholding Order) – This collection method can be used with the payor has a job. It is a court order issued to the employer of a payor.  It requires the employer to deduct support from the payor’s paycheck and send it directly to the payee.  An employer who fails to follow this order becomes liable for the payment amount if he/she/it fails to follow the order.  However, wage garnishments cannot take more than 50% of the net income on the paycheck.  So, the payee may receive only a portion of the amount owed.
  • Writ of Execution (a.k.a. Levy) – This collection method can be used when the payee has information about the payor’s financial accounts and property. It is a court order that seizes the payor’s money and property with the help of the sheriff’s department.  The seized money goes directly toward the support payment.  The seized property can be sold, and the sale proceeds go toward support.   If the payor owns a business, a writ of execution can also be used to place a lien on the business.

Child support only –

  • Child Support Security Fund – This is a court ordered deposit in a court-controlled account. The Court can order up to one year of support placed into the account.  The Court can then disperse the funds in the account if a payment is more then 10 days late.

 

Punishment and penalties:

Child support and/or spousal support –

  • Interest – Unpaid child and spousal support amounts accrue interest at a rate of 10% per year for each missed payment. Courts may not relieve the interest.
  • Civil Penalties – For each unpaid child support payment, a party can sent a special notice of civil penalties. The unpaid amounts are not paid within 30 days, the Court can  assess a civil penalty of 6% per month.
  • Contempt Proceedings – Contempt is a quasi-criminal charge. For each missed payment (each count of contempt), the contemnor can serve up to 5 days in jail and a fine of up to $1,000.  Contempt proceedings must be initiated within 3 years of the missed payment.  Because jail time is a possibility, contempt proceedings that allege more than 35 counts are tried in front of a jury, and the contemnor has a constitutional right to an attorney.
  • Attorneys’ Fees – Courts have the ability to grant attorneys’ fees incurred enforcing support orders.

Child support only –

  • Department of Child Support Services (“DCSS,” “CSSD,” etc.) Enforcement – Each county has a government agency responsible for determining and enforcing child support orders. Some counties will also enforce spousal support, if there is also a child support order.  They can assist with all of the remedies described above, but they can also go farther.  They have greater access to income information – they can access confidential tax records and bank records that the payor might otherwise refuse to provide.  They can intercept tax refunds, suspend driver’s licenses, suspend passports, suspend professional licenses, and seek criminal prosecutions.  Their services are generally cost free.  However, that results in a very high volume of cases, and it can mean a delay in results.

 

Laws that prevent running away from support:

  • No Discharge in Bankruptcy – Amounts owed in child and spousal support cannot be discharged in bankruptcy.
  • Enforcement in Other States – Out of state support orders can be registered and enforced in California. California support orders can be registered and enforced in other states.  The payor does not need to live in the state where the order is registered, so long as the payor has property or bank accounts in the state.

 

Because California law requires child support be paid before any other debt and because California is so strict about, it is important that payors make child support a priority – pay as much of the child support payment as often as possible.  It is also important for child support payors to ask the Court to lower their support if they cannot pay it.  A motion to lower support should be filed as soon as possible to avoid the penalties described here.

This blog is not meant to provide legal advice, and the law may have changed since it was written.  Every person and every case is different.  You should speak with an attorney about your specific circumstances.  Whether you are looking to get a support order, enforce it, or modify it, Core Law Group can help.  Schedule a consultation with one of our attorneys