WHAT CAN I DO IF MY EX ISN’T PAYING THEIR CHILD SUPPORT?
June 18, 2021
If you’re a custodial parent of a child under the age of 18, and the non-custodial parent has stopped making child support payments. What can you do?
A lot will depend on whether or not your child support plan was issued or approved by a court, or privately agreed between the two of you. Or suppose you’re on the other side and required to make those payments, but you hit hard financial times. What are your rights?
The child support attorneys at The Law Offices of Steven E. Springer have over 30 years of combined experience in these matters, and we stand ready to help you resolve your situation, whichever side you’re on. With offices in San Jose, Morgan Hill, and Fremont, we proudly serve clients throughout Santa Clara County and Alameda County.
FILING A CONTEMPT MOTION
If you are the custodial parent and child support payments have stopped, you can go to court and file a contempt motion against your partner. However, the court will honor your motion only if your child support plan has been issued or approved by a court. If it’s a private agreement between the two of you, the court lacks the necessary standing to intercede.
That’s why it is essential, in cases of separation or divorce involving children, that child support payments be presented to the court for approval. If you, as the custodial parent, fail to follow the court system, you can be out of luck if the other parent decides to quit paying. You’ll have to go back and start over to get a court order or have your arrangement approved.
Another key element is time. California places a three-year statute of limitations on filing motions of contempt for non-payment of child support. If the non-custodial parent is continually stopping and starting payments, and the money owed to you is stacking up, you’ll need to file a contempt motion every three years.
THE COURT PROCESS
If your contempt motion meets all of the legal requirements, the court where you filed it (in the county where you reside) will hold a hearing. If the other parent is found to be delinquent — ruled in contempt of court — your motion will be granted, and the delinquent parent can then face civil or criminal penalties, or a combination of both. Under California Penal Code Section 270, the delinquent parent might even be fined and sent to jail until he or she pays at least a certain portion of past-due child support.
The court can also order that the delinquent parent’s financial resources be tapped — or even seized — to satisfy the child support arrangement. This means the non-paying parent’s paycheck can be garnished by up to 50 percent.
The government can likewise intercept funds from Social Security, Veterans Benefits, disability payments, workers’ compensation, unemployment, tax refunds, retirement plans, and just about any other source. A lien can be placed on one’s property, and some assets even sold to fulfill payment obligations.
For child support payments that are past due — say you owe a year or more of monthly payments — you can also be slapped with a 10% per annum interest penalty under California Code of Civil Procedures Section 685.010. Additionally, you can be found liable for a penalty anywhere between 6% and 72% if you fall behind by more than 30 days on your payments, according to California Family Code 4722.
THE RIGHTS OF THE DEFENDANT
If you’re the defendant in a child support contempt hearing, your only real defense is to argue that, due to difficult financial circumstances, you absolutely do not have the resources to make the payments as stipulated by the child support order or approved plan. If you truly cannot pay, the court will likely not hold you in contempt, but the burden of proof rests on your shoulders. Should you find yourself in this position, we advise that you seek out legal counsel immediately.
HOW THE LAW OFFICES OF
STEVEN E. SPRINGER CAN HELP
California law obviously gives the custodial parent and the court system broad powers in enforcing child support payments. Though matters are weighted in favor of the parent with custody of the child since the “best interests of the child” are always prioritized, both parents do have rights that need to be protected.
Whether you’re the custodial parent whose child support payments have stopped, or you’re the non-custodial parent facing financial setbacks, our child support attorneys are here to help you aggressively assert your rights.
If you live in or near San Jose, Fremont, or Morgan Hill, or anywhere in Alameda County or Santa Clara County, reach out to our office today for a free consultation. We provide a supporting and comfortable environment where you can share your story with us, and we can answer the questions you have in return. Call today so we can get started on working on a positive outcome for you.