You have an order for the payment of support, now what? The goal is for everyone to meet their court ordered support obligations, and most parents and former spouses, comply. However, there are always those that have not paid and will not pay, for many possible reasons. The Court’s ability to enforce support obligations is vital to insuring spouses and children receive the support they need and deserve.
The necessary elements for a support case are pretty straightforward. There must be one, a court order for the payment of support; and two, a default in the payment of that support by the payor. If nothing else, proof of these two elements will entitle the support recipient to a money judgment for the amount of the arrearage. To get further sanctions however, the recipient must also prove a third element, that the defaulting party had the “ability to pay” the support but willingly failed to do so. Proof of this third element will allow the Court to enter the more severe contempt sanctions, discussed below, which are designed to assist the Court in compelling the defaulting party to pay that which he or she rightfully owes.
Ability to pay is a potentially complicated subject that would require more time and words than can be allotted during this column, but essentially, it must be proven that the defaulting party could have paid but chose not to pay the support. The good news for the recipient is that the law presumes that the payor has the “ability to pay” if the support is previously court ordered. Thus, for the third element, it is really the defaulting party’s burden to prove that he or she cannot afford the support. Typically, this requires proof of a pretty bleak financial picture.
If you can meet the three primary elements, then you may be entitled to contempt sanctions in addition to a money judgment for the arrears. The most severe sanction is ordering that the defaulting party be taken into custody and jailed until they pay a purge (usually a very specific amount of money up to the total arrears). For this relief, it must be clearly proven that the defaulting party has the ability to pay the purge amount. The best evidence of this is money in the bank, but other proof may suffice. In other words, to put the person in jail, the Court must find that they have the keys to the jail cell in the sense that the defaulting party has the ability to pay a purge amount which will allow them to get out as soon as they choose to make the payment.
Other contempt sanctions include the implementation of an income withholding order to garnish pay to apply to future support payments, a monetary fine, suspension of a driver’s license or other business license, and or recovery of attorney’s fees. Also, other traditional money judgment collection efforts are available, but those are not often helpful.
You can seek Court enforcement on support obligations by filing a Motion for Contempt and Enforcement by yourself or through you attorney. If qualified, a support recipient may use the State Department of Revenue to assist in prosecuting support enforcement. The key is not to sit back and get disheartened by non-payment. Enforcing support may feel like a dead-end, but the judicial system wants support to be paid, and the system wants to see Court orders followed. If you are not getting the support that is ordered to be paid to you, please consult an attorney to get educated on your rights.