Many family law litigants rely upon child and spousal support payments from their ex-spouse/partner as part of their financial survival. When those payments are not made, they are often left in difficult and desperate circumstances. This post addresses several steps that can be taken to ensure compliance with financial support orders and, if necessary, force the compliance.
The first (and often most effective) mechanism available is a wage assignment. This is an order from the Court that can be taken directly to the ex-spouse/partner’s employer which will require the employer to pay the court-ordered support payments directly to the recipient. This procedure is highly effective since it removes the ex-spouse/partner as the “middle man” and instead connects the employer directly with the payee.
Most family law courts will grant a wage assignment as a matter of course, particularly when there is evidence available showing that the payor is not complying with his or her court-ordered obligations. In many states, the Department of Child Support Services offers free assistance preparing and enforcing wage assignments. To see if such services are available in your state, you should check the court’s website and/or contact the self-help center at the family law courthouse.
Writs of Execution
Another mechanism which can be highly effective is known as a writ of execution. This is essentially an order from the Court that can be taken to the local Sheriff or other licensed process server who can then take it directly to a bank or financial institution for enforcement. When the bank or financial institution is presented with the document, they must comply with it and issue a payment directly to the support recipient within a period of time that is specified by each state’s laws.
This avenue can be very effective in situations where the ex-spouse/partner may not be earning a paycheck and instead is living off assets or investment income. Writs of execution can be somewhat procedurally complex to obtain, so it is usually worthwhile to consult an attorney before attempting to obtain them.
The third mechanism available is to pursue a claim of contempt against the ex-spouse/partner. Contempt (which is often short for “Contempt of Court” depending on which state you are in) is a quasi-criminal proceeding in which one spouse/parent is seeking an order from the Court imposing criminal punishment against the other willful failure to comply with the Court’s orders.
To obtain a ruling of contempt, there generally needs to be three factors presented (which may vary from state to state): (1) a valid court order; (2) the accused has knowledge of the order; and (3) the accused willfully violated the order. Consequences for being found in contempt can include monetary penalties and possible imprisonment.
Contempts are very procedurally complex and time-consuming since they involve possible criminal ramifications. Accordingly, anyone considering a contempt claim or facing a charge of contempt must seek the advice of a family law attorney.
Other Mechanisms and Considerations
States often offer various other punishments for failure to comply with child support or spousal support orders, including suspensions of drivers’ license, suspension of passport, etc. It is also important to keep in mind that child support and spousal support payments, and the arrearages resulting from non-payment, are normally not dischargeable in bankruptcy. In turn, many states allow interest to accrue (often up to 10% per year) and can impose other significant financial penalties.
If you are facing a difficult financial situation and you cannot afford the child and spousal support payments that were previously ordered, it is often imperative that you file a motion or request for order with the Family Law Court seeking a modification of the order. If you do so, you often can also request that the Court take your financial circumstances into account and order a modified payment plan that you can afford to satisfy any arrearages that may exist for unpaid support.
Anyone interested in learning about the above-referenced enforcement mechanisms should consult with the Law Offices of Robert J. Nachshin, P.C. by calling 310-478-4600.
(This post is also available at: http://www.divorcemag.com/blog/what-to-do-when-your-ex-does-not-pay-child-or-spousal-support )