What to Do If the Other Parent Isn’t Paying Their Child Support Obligation
First, Get It in Writing!
In all fifty states, child support obligations are created by court orders. You probably got your child support order as part of a divorce or previous child custody/child support case. Even if you didn’t go to court in person—which can happen in cases where the parties reached an out of court stipulated agreement, there should still be something in writing. That’s your starting point. Even if you’d rather resolve the issue out of court, a court order gives you something to legally enforce. That’s leverage.
If you never made a formal written agreement with the other parent, it’s time to go to court. Without anything in writing, there’s literally nothing to enforce. A government child support enforcement agency, in New Mexico we have the New Mexico Child Support Enforcement Division can often help you get an order, or you can hire an attorney.
Are you able to talk to the other parent? You don’t have to start by talking with the other parent—but based upon years of experience, I certainly recommend that you try. Negotiating is quicker than any collection effort, less likely to create bad feelings and far cheaper than a court case. For those reasons, it’s usually in the best interest of the children. But don’t do this if you can prove your ex is lying about his or her finances, when there’s a pattern of domestic violence or other abuse, or a history of deceit.
Even if you do agree on changes to your written agreement, you should spell them out and get your agreement approved by a judge. Remember, if there’s no court order, your rights under the new agreement aren’t enforceable. Attorney fees for an uncontested change in a support order should be relatively modest.
If the other parent can’t pay the full monthly amount, agree to accept at least partial payment. Not that you want to let them off the hook completely, but something is better than nothing. And if they are genuinely cash-strapped, it may be better for everyone if he or she gets the child support reduced. You can always modify the obligation in the future when circumstances warrant.
All states have anti-retroactive modification laws. That means that a modification of child support can't be made retroactive beyond the date of the filing of a motion in court. There are of course exceptions. In New Mexico retroactive child support can be ordered in cases where a Petition to Establish Parentage has been filed pursuant to the New Mexico Uniform Parentage Act.
So let’s say you have a court order establishing a child support obligation compelling the other parent to pay you and you know want the Court to enforce it. How do you do that? You must file a motion to enforce child support order. There may be other procedural motions that must be filed as well. Nevertheless, the main motion is the motion to enforce.
Once you are in front of the judge and if you are successful your motion will be granted and you will have an order enforcing payment of child support. At this point you can ask the judge to help you garnish the other parent’s wages. The judge signs off on a wage withholding or garnishment order which you will then need to present to the other parent’s employer(s). Your state child support enforcement office can also help you. Of course in serious cases, you might ask the judge to incarcerate the other parent for contempt of the court order.
In some states there are mechanisms for levying a lien against the other parent for outstanding child support. Other states provide for criminal sanctions. The federal Deadbeat Parent Punishment Act can also be used in all fifty states. You might also be successful in intercepting their tax refunds.
You can contact the Office of Child Support Enforcement which is part of the Administration for Children and Families within the United States Department of Health and Human Services. This program is a federal mechanism which can assist you. There is also the United States Inspector General’s office.
The U.S. Office of the Inspector General (OIG) can intervene in child-support cases where the non-custodial (paying) parent lives in a state other than where the child lives, and:
The punishment include fines and up to 6 months in prison (or both) for a first offense. For a second offense, or where child support hasn’t been paid for more than 2 years, or the amount owing is more than $10,000, the punishment is a fine of up to $250,000 or 2 years in prison, or both.
One caveat to all of this and that is consider the following…If you have the non-custodial parent’s driver’s license, or professional licenses suspended it will be extremely difficult for them to get to work or even keep their present jobs or professions. If you have them arrested they certainly cannot work. If they cannot work, they cannot pay you child support.
One last point to consider, if you help maintain the other parent in your kids’ lives, if you allow for co-parenting, the non-custodial parent is more likely to want to pay their child support obligation. Right or wrongly, they will feel they are getting something for their money. Co-parenting is a good thing and it’s most cases in your child’s best interests