What can I do to enforce payment of child support?
There are civil and criminal methods of enforcing child support. This discussion focuses primarily on civil enforcement. You should be aware that in a criminal contempt proceeding the court may generally use its contempt power to enforce orders made in family law proceedings, and a parent who fails to pay a lawful child support order of which he or she has knowledge is deemed in contempt of court and may be ordered to perform community service or be imprisoned, or both.Let’s discuss civil enforcement.
Whenever a support order is established or modified, the court must include an earnings assignment order for support in the order. The order directs the obligor’s (parent that owes support) employer to pay to the obligee (parent to whom support is owed) a portion of the obligor’s earnings sufficient to pay the current support amount and an amount to be paid toward liquidating any arrearage. The service of an earnings assignment order is difficult to oppose. It can be “stayed” only upon a court making a finding of good cause. This will require the court to provide a written explanation as to why the “stayed” order would be in the child’s best interests. Good cause could also be a history of uninterrupted, full and timely payment of support by the obligor, not through an assignment order or other mandatory process, ordered during the previous 12 months. A payment is timely by statute if it is received within 5 days after its due date.
The obligor can also move to quash an earnings assignment order for support if the order incorrectly states the amount or the amount withheld exceeds what is allowable under federal law. Under federal law, an employer is required to withhold from 50% to 65% of “disposable earnings.” Disposable earnings or earnings left after subtracting the money that state or federal law requires an employer to withhold, such as federal income tax, social security, state income tax, state disability insurance, and payments to public employees’ retirement systems.
A little used, but effective method of enforcing a support order is to apply for an order requiring the obligor to appear before the court or a court-appointed referee, at a specified time and place, to furnish information about the obligor’s property and future employment prospects to aid in enforcing the money judgment for child support. This is called a Judgment Debtor Hearing. Here is how it works. A court issues an order on the obligee’s application that results in a court order that the obligor must appear before the court, and bring any records that the obligee requests. The Judgment Debtor examination proceeding is an alternative to proceeding against the obligor’s property by levy under a writ of execution. One of the advantages of the examination procedure is the availability of a turnover order requiring the obligor or a third person to deliver assets to the levying officer. Because the order requires delivery of property directly to the obligee and creates a lien on the property subject to it, and it is enforceable by contempt, it is a more effective method than levying on property under a writ of execution. The obligee must cause the order to be personally served on the obligor not less than 10 days before the date set for the examination. If an order requiring the obligor to appear for an examination was served and the person fails to appear, the court may issue a warrant to have the person brought before the court to explain the failure to appear and may punish the person for contempt. The court will most likely issue a bench warrant with bail set at the amount of the arrears owed or another appropriate amount when a person fails to appear for an examination. Although the judgment debtor exam often occurs informally in the court hallway or cafeteria, the obligee may hire a court reporter to record all of the proceedings. Just before commencement of the judgment debtor exam, the clerk of the court will place the obligor under an oath. This means that the answers to the questions asked of the obligor are under penalty of perjury. The obligee may commence to ask questions of the obligor about the obligor’s assets and liabilities, and question the obligor regarding any of the documentation that the obligee requested be produced at the judgment debtor exam.
The earnings assignment order and the judgment debtor examination are two of several methods of civil enforcement of a child support order. They are both effective, and of the two methods, the wage assignment is the easiest and least intrusive method to enforce a child support order. The judgment debtor examination would be more beneficial if the obligor is playing games, such as claiming he or she is not employed, or that he or she is self-employed, or uses other means of hiding income or assets.
By Wallace S. Fingerett, CFLS*
This FAQ was first published in Divorce Magazine and is reprinted with their permission.