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What to do if your ex-spouse fails to pay child support

What to do if your ex-spouse fails to pay child support

Under the law, both parents of a child are required to provide financial support for that child. In the case of a divorce, separation, or when non-married parents no longer live together, a non-custodial parent is required to provide financial support to help the child maintain a standard of living similar to the one the child would have had if the parents had remained together. If an ex-spouse or non-custodial parent of a child fails to pay child support, there are several things a custodial parent can do to obtain needed child support.


Do

Do make sure that there is a valid child support order in place

Unless a court has issued an order for the payment of child support, a non-custodial parent is not legally required to make any payments towards a child’s care or medical costs. When a couple who has a child or children split up, the first thing the custodial parent (the one who will retain placement of the child or children) should do is file a petition for child support with the state’s family court. It is important to do this immediately when a couple splits up because child support is not retroactive (there are no back payments). If the couple has been married and is getting a divorce, the family court can enter a temporary order for child support while the divorce case is pending and while a final determination regarding child support is being made.

Do make sure that the order for child support reflects the child’s current living situation and the non-custodial parent’s financial situation

If a child is spending more time with the custodial parent than is reflected in the original child support order, or if the non-custodial parent has experienced an improved financial condition, the custodial parent can seek a review of the original child support. If the court finds that the non-custodial parent’s income, financial situation, or other circumstances warrant an increase in contribution, the court will update or amend the child support award. The court also may award an adjustment in a child support award if the child’s custody or family status has changed.

Do consider contacting the local child support agency for help with collecting support obligations

Each state has its own child support enforcement agency. Depending on state law, the local child support agency may use a variety of collection tools to encourage child support payment. State and federal laws limit how and when certain tools can be used, but some possible options include:

  • wage garnishment or payroll deduction
  • bank account levies
  • reporting non-payment to credit reporting agencies
  • intercepting money from IRS tax refunds, lottery winnings, workers’ compensation benefits, unemployment compensation benefits, insurance settlements, or liquidated unclaimed property.
  • property liens, including liens to prevent the sale of vehicles, boats, personal watercraft, mobile homes, and real estate.
  • suspension or denial actions to prevent the issuing or continued validity of driver’s license, passports, professional licenses, vehicle or vessel registrations, and hunting or fishing licenses.
  • judicial intervention, including civil arrest orders, jail time, and misdemeanor or felony criminal prosecution by state attorneys or U.S. attorney
     

Do file for a violation of the child support order (motion for civil contempt)

If a non-custodial parent who owes child support is able to pay but fails to do so, the custodial parent may file an action for enforcement. Speak with your attorney about filing the correct papers with the court for enforcement of the child support order or for violation of the child support order (i.e. motion for civil contempt).

Once the action is filed, a notice is mailed to both the custodial and non-custodial parent, informing them of the date, time, and place of the court hearing on enforcement. If the court finds that the non-custodial parent has failed to make payments as called for under the child support order, the court may find the non-custodial parent in contempt of court for willful nonpayment. The court may then order that the non-custodial parent be incarcerated until the child support payment is made. If the non-custodial parent fails to appear in court for the enforcement hearing, the court may issue an order of arrest for the non-custodial parent.

Do keep careful, specific records of payments you receive pursuant to the child support order

Custodial parents should keep meticulous records of all child support payments received from the non-custodial parent. Depending on the state, a custodial parent may receive payments from the non-custodial parent through a variety of sources. If a custodial parent receives child support payments through a state debit card, the state generally provides a website to see child support payments that have been applied to the debit card. If a custodial parent receives child support payments deposited directly into a checking or savings account, deposit information should be available from the custodial parent’s bank.


Don't

Do not make any “informal” agreements with the non-custodial parent regarding the amount of child support that will be paid

An informal agreement regarding child support is not legally enforceable. In order to make sure that a non-custodial parent will be legally bound to pay the amount of child support being agreed upon, a court order must be obtained. A notarized out-of-court agreement is not sufficient. Also, court orders for child support are only effective from the date the court issues them. Until the court issues an order, the non-custodial parent is not required to pay a dime for child support.

Do not accept payment of the mortgage, or other expenses, as an exchange for not paying child support

A child has a right to financial support from the custodial and non-custodial parent. A custodial parent should seek legal advice before accepting a “deal” or agreement that calls for the non-custodial parent to make mortgage payments, or other payments, as a trade-off for not paying child support. This is different from a situation where it may be reasonable to have the non-custodial parent directly pay a third party for certain support expenses for the child (such as education related costs, summer camps, lessons, etc.).

Do not enter into a settlement for a lump sum payment for child support without first seeking legal counsel advice

Entering into a settlement for child support can be very risky. A non-custodial parent’s income may increase or a child’s support needs may increase, thus causing a one-time award that might not accurately reflect the amount of support to which the child is entitled. By providing an opportunity for modification, a custodial parent can seek review of a child support order on a regular basis, as allowed by law, or if either the non-custodial parent’s or the child’s circumstances change.

Do not wait too long to seek enforcement of the child support order

It is important to take prompt action when a non-custodial parent fails to make child support payments. Waiting around to see if the non-custodial parent will make good on his or her payments can result is a situation where the non-custodial parent owes significant amounts of back child support. As with any debt, the larger the child support debt becomes and the longer it goes unpaid, the more difficult it generally becomes for the custodial parent to obtain all the child support money that is owed.

Do not go it alone

Collecting child support when a non-custodial parent fails to pay can be stressful and difficult. It also can sometimes lead to the custodial parent behaving in ways that can be harmful to the child or outright illegal. Contact an experienced attorney right away when child support payments stop. The attorney can explain your options and help reduce some of the stress that can be experienced when an ex-spouse or birth parent fails to pay court ordered child support.


Summary
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Child support is awarded to provide for a child’s basic needs and to allow the child to share in the standard of living of both the custodial and non-custodial parent. Child support is awarded to provide for a child’s basic needs and to allow the child to share in the standard of living of both the custodial and non-custodial parent. A custodial parent should take immediate action if a non-custodial parent fails to make child support payments as required under a child support order. If the local child support agency is unable to obtain the payments on your behalf, talk with an experienced attorney who can promptly pursue judicial enforcement of the child support order.


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Holli M. PalmerAttorney at Law

Holli Palmer is an experienced and caring, dedicated family attorney in Houston. Representing men and women dealing with custody, divorce and related disputes in the greather houston area and Harri, Montgomery and statewide counties. With over 1...

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