A key understanding in all divorce cases that involve children is both parents have an ongoing obligation to support their children. Divorce or separation does not negate or minimize the level of obligation to support and properly care for the children.
The court's primary goal is to establish post-divorce custody orders that are in the best interest of the child. In most cases, one parent receives custody of the child the majority of the time, as opposed to equal time.
To help that parent, the court orders the other parent to pay support. The amount is usually based on the income of both parents and is made in light of what will be in the best interest of the children. Child Support guidelines created by state law help arrive at the amount the other parent must pay. But what do you do if the other parent fails to pay you the required amount?
Fortunately, the courts are set up to deal with issues that arise post-divorce. There is a legal procedure in place to take care of these problems, but if you don't pursue your legal rights, the situation will not be dealt with properly and could cause further damage financially and possibly, emotionally.
- How To Deal With Challenges In Collecting Child Support
If you have an order for child support and your ex-spouse fails to pay child support, you have options available to you. To start, you must use the legal required procedure available to you via the Family Law courts and have the matter brought before a judge or magistrate. You or your attorney have to file a motion with the court addressing the specific issue, challenges in collecting support, before you can resolve the issue.
Of course, it is understood you may experience financial hardship during the period when your ex is not paying the support payments, but do not fall into the faulty thinking that it's easier to live with the consequences of a non-paying ex because you feel you may not be able to afford an attorney. Take legal steps as soon as possible. The longer you delay, the longer you and your family will suffer without just cause.
When you start the legal process to collect unpaid child support, you may:
1. Ask the court to issue a wage assignment order which would allow you to garnish your ex's wages.
2. File a contempt action to hold the other parent accountable for willfully failing to comply with the support order.
The best strategy will depend on the facts of your case. In challenges such as these, no one ever comes out a clear winner. With the extra attention paid to the circumstances that usually lead to the failure of payment in support, many private family and parental matters are openly shared and reviewed during the court process. This is one of the reasons why it may be wise to work with a family law attorney - to reduce the stress and worry you may experience in the process of filing and court appearances.
- What To Do When Your Ex-Spouse Falls Behind In Paying Child Support
If you find you're ex-spouse has fallen behind in paying child support, you can ask your attorney to request the court to issue a wage assignment order which would allow you to garnish the other parent's wages. And you can also file a contempt action to hold the other parent accountable for willfully failing to comply with the support order.
If the non-paying parent fails to notify the court that he or she cannot pay support, they will accrue arrearages of back support if they fail to make payments. Back support accrues interest and in some cases penalties. These amounts add up quickly.
The parent can petition to the child support agency and the family law court and bring the non-paying parent before a judge to enforce the child support order. In enforcing the order, the court can garnish wages and order child support liens. Additionally, a support lien may attach to the other parent's car or other property. If the other parent remains in arrears, the property may be foreclosed and sold to satisfy the lien.
- Your Ex-spouse Is Filing For Bankruptcy. How Will This Affect Child Support?
Child Support is a preferred debt, meaning that your ex-spouse cannot discharge it by filing for bankruptcy. The court has no authority to change the amount of your support unless either you or the non-custodial parent take legal action and seek a modification of your support.
The bottom line, filing for Chapter 13 bankruptcy will not discharge child support obligations. Your ex-spouse must continue to make ongoing support payments during the Chapter 13 process. Because of public policy concerns, The United States Congress decided child support debt is too important to be discharged in bankruptcy. As a result, in Chapter 13 bankruptcy, child support obligation is treated as a priority debt and can't be eliminated by bankruptcy discharge. In fact, the non-paying parent must pay off any outstanding child support arrears (missed payments) in full through his or her Chapter 13 repayment plan.
- Grounds to Modify Child Support
Yes, if there has been a change of financial circumstances due to situations such as: job loss, under-employment, unexpected health/medical circumstances and such, support orders can be modified. We have posted articles on modifying support such as filing a contempt of court petition for those who need help navigating their way through the process of returning to court after the divorce is final.
To qualify for a change in support modification, either parent must show that there has been a change in circumstances since the last order was put in place. Keep in mind, even if support amount is lowered, the amount of child support in arrears must still be paid in full.
If you find yourself dealing with an ex-spouse who is falling behind in child support or defiant in complying with support orders, it is in your best interest to meet with a lawyer now. Obtain trustworthy legal advice about your options and understand your rights so that you can protect you and your children from financial burdens and ongoing stress.