The Other Parent Is Not Paying Their Child Support. What Can I Do?
The answer to this question depends on an array of circumstances a lawyer would need to know. One of the first things to be determined is what the current child support orders say in terms of how payments are to be made. At the initial establishment of a child support obligation, the court or parties will determine how support will be paid. In some cases, the parties might agree that the payer pays the payee directly, generally on a set day each month. In other cases, the parties might agree that child support gets paid through a Family Support Registry (FSR) account. There might also be orders, whether derived through agreement or handed down by a judge, indicating that child support will be paid through an Income Withholding Order (wage assignment), generally with funds going into the FSR.
Pursuant to Colorado statute, when support orders indicate a direct payment to either the payee or through the FSR, and payments are not being made, the payee may issue an Income Withholding Order. Thus, if the payor is not paying his or her monthly child support obligation, but is employed, the first step in enforcing your child support orders should be to file the Income Withholding Order (IWO). The IWO directs the employer to withhold child support with each pay check received and if they do not they can suffer significant consequences. Unfortunately, not all child support obligors are employed. Likewise, their are some payers who decide it’s easier to just quit their job when the employer is served with the IWO. The primary point is that not everyone is a viable candidate to be garnished.
Enforcing child support orders prospectively via an IWO is different from trying to enforce orders regard back child support that has not been paid. In those instances, there are various remedies the payee might pursue. Firstly, pursuant to C.R.S. 14-10-122, each monthly child support payment not paid automatically becomes a judgement. To make the judgment enforceable, the payee will need to file a Verified Entry of Support Judgment and Affidavit of Arrears with the court. Once registered with the court, the payee has various judgment remedies available to him or her, including additional wage garnishments, garnishments on bank accounts or other property, and even liens on real estate. Furthermore, interest accrues on each child support payment not made at the rate of 12% per year, compounded monthly on each payment. As such, depending on how old the arrears balance is, it may make sense to also submit an interest calculation, which becomes part of the judgment as well (and keeps growing). Seeking a Verified Entry of Support Judgment may not be an option in all case to the extent that there are parents who do not work and own no property. Having the judgment is great, but if nothing comes from it the purpose of seeking it is potentially defeated. Your Denver child support attorney can help you assess whether seeking a Verified Entry of Support Judgment is a viable option.
In the worst of cases, in which there is no income or property to go after, the payee may be left with filing a Contempt of Court motion. Once filed, the court will issue a citation and order directing the violating payer to appear at a certain time to plead guilty or not guilty regarding the facts set forth in the complaint. Presuming a not-guilty plea is entered, the matter will be set for an evidentiary hearing at which time the payee will need to show that there was a valid court order, that the payer did not pay, that the payer was aware of the court order, and failed to comply with it. With contempt of court proceedings, both punitive and remedial sanctions can be sought. With punitive sanctions, both jail time (up to 180 days) and a fine can be requested. With remedial sanctions, remedial orders can be sought, which can also include jail time and attorney fees. Some payers find the potential of 180 days in jail to be strong motivation to get caught up on their support obligations. As such, contempt can be an effective tool to force compliance with child support orders. Conversely, it can be costly, though the hope is that the court will award attorney fees at the end of the process. Proving remedial contempt requires a preponderance of the evidence, whereas to prove punitive contempt, which is quasi-criminal in nature, the filing party must prove his or her case beyond a reasonable doubt.
Another option, which can be pursued in conjunction with having an attorney or on your own, would be to seek the assistance of your county Child Support Enforcement Unit. The CSEU has a broader reach than a private attorney might in that it can potentially have drivers and professional licenses or passports suspended. The CSEU will also have the ability to access Department of Labor records to see if someone is working and where. Conversely, the CSEU may move slower than a private child support attorney, may be willing to allow the payer to make up arrears on a slower pace than a private attorney would, may move more slowly in general to enforce child support orders, and will not calculate interest.
When dealing with a child support enforcement issues, it’s advisable to contact an experienced family lawyer to assist in helping you make decisions that make sense for you, in light of the circumstances you are dealing with.