What if my spouse doesn’t pay child support he or she has been ordered to pay?
Child support orders are effectuated either by way of settlement, which would include a stipulated order, or, as a result of a contested hearing and/or trial in which the Court, after hearing the evidence, enters an order. It is most unfortunate if, after the parties have incurred time, inconvenience and in many cases, escalating fees, all of which result in a Court Order for child support, that the payor either ignores the payment, and/or refuses to make the child support payment in whole or in part. In such situations there are a number of remedies available to the parent who is not being paid in accordance with the Court Orders for child support. The payee parent may wish to consider some of the following remedies, which are not necessarily inclusive of all available remedies, but may be effective nonetheless:
1. Earnings Assignment Order for Support.
This is a device that should be considered to be utilized at the very beginning after the Court Order for support is made. An Earnings Assignment Order for support is probably the most effective and commonly used enforcement method. The employer is required to deduct child support and pay it directly to the supported parent.
2. Judgment Lien on Real Property.
It can also be effective to record an Abstract of Support Judgment after the support order is made. An Abstract should be recorded in each county where the payor spouse owns real property. While the recordation of an Abstract of Support Judgment will not automatically result in the payment of delinquent child support, it could be effective if the defaulting party wishes to or is in the process of refinancing or selling real estate. A properly recorded Abstract of Support Judgment must be honored and payment made prior to the close of escrow.
3. Writ of Execution
This is a process in which the defaulting party’s bank and/or financial institution accounts can be levied upon after one of the parties files certain paperwork with the Court to have a Writ issued. The process can move as quickly as the Court clerk can process the paperwork. Once the bank account is levied, the defaulting parent has the right to seek an exemption, but those exemptions are relatively few and far between. This can be an effective way of either securing the funds or certainly getting the attention of the defaulting party.
4. Debtor’s Examination.
This is a situation in which the defaulting parent is actually ordered to appear in Court and to answer questions as to where his or her assets and/or income is. It may not result in the immediate payment of support, but it can be a helpful investigative tool for the purpose of finding our where property and assets are.
5. Action for Contempt
This proceeding requires a Court hearing and it can take a significant period of time, sometimes 30 or 60 or more days, for the hearing to transpire. If the contempt proceeding results in a successful finding of contempt, the finding of a contempt does not automatically mean that the child support will be paid. The finding of contempt can result in incarceration and/or other punitive remedies, but not always the payment of actual support.
6. Appointment of a Receivor.
In more complicated instances where the defaulting party may have an ownership interest in and/or operate a business, this device actually results in a third party being ordered to investigate and process the support order so as to make appropriate support payments to the payor. This process does require that an appropriate Motion be filed and significant time may be incurred in awaiting the outcome of this process.
The supported parent should also consider utilizing the services of appropriate child support enforcement offices in the particular county in which the payee may reside. The utilization of government provided offices for the collection of child support can be extremely time consuming, but can, in the final instance also be successful in securing child support.
By Robert C. Brandt, CFLS*
This FAQ was first published in Divorce Magazine and is reprinted with their permission.