Does my ex-husband have to pay court ordered child support?
What can you do when your ex-husband refuses to pay child support?
You can enforce your children’s rights to his support, get your ex-husband to start making support payments, and get the back-owed support paid. The best way to get your children the support they need is to take the following steps.
Review the Court Order
When the judge first ordered your ex-husband to pay child support, that amount was memorialized in writing. If you do not have a copy of that order, call your attorney and get a copy. You need to know exactly how much your ex-husband should be paying, when he should be paying it, and to whom he should be paying it.
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Communicate With Your Ex
You and your ex-husband, though divorced, will always be connected through your children. For this reason, you should approach your ex-husband civilly, as a co-parent, and discuss why he isn’t paying child support. It is better for the whole family if this issue is resolved diplomatically, if possible.
It may be that he simply needs a reminder of how important that money is to his family, or that some sort of alternative arrangements need to be made, such as moving the due date to the date he gets paid, or paying each week rather than every other week. In this case, flexibility and patience may get your children the support they need.
Explore Your Legal Options
If your ex-husband refuses to discuss the matter or simply does not want to pay child support, you owe it to your children to take legal action to enforce their rights.
Find An Attorney
If you do not have a relationship with an attorney from your divorce, find an attorney to help you enforce the child support order. Usually this is done by filing a motion with the family law court and serving it upon your ex-husband. Your attorney will draft and file that for you, and have it served on your ex.
A motion hearing will be scheduled and you and your ex-husband are required to attend. Your attorney will explain to the judge how your ex-husband is violating the order, and ask the judge to order your ex-husband to pay. The judge may have some questions for you, and also will want to hear from your ex-husband or his attorney. The judge will then likely issue an order ordering your ex to resume payments and crafting a payment schedule for back-owed child support.
Office of Child Support Services
Federal law requires each state to have “Title IV-D” agencies to assist people with child support enforcement. For more information and to locate the Title IV-D agency in your state, see U.S. Department of Health and Human Services, Office of Child Support Enforcement and U.S. Department of Health and Human Service’s Office of Inspector General).
In many states there are legal aid services that can help low-income families enforce a child support order. You can find out if legal aid is available by visiting your court’s website or by googling legal aid or pro bono legal help.
Many courts also provide instructions and forms on their websites for people to represent themselves in a motion to enforce child support. This is called representing yourself pro se. Keep in mind that even though you are not an attorney, you will be required to follow the same procedures and rules that attorneys do.
Child Support Enforcement
Once you’ve been successful in asking the judge to order your ex-husband to resume child support payments and pay child support arrears, the judge can also order one of these three ways in which child support is paid or collected.
Wage Deductions, If Your Ex-Husband is Working
If your ex-husband has a history of failing to pay, failing to pay in full, or paying late, the judge may order his employer to deduct child support from his wages and submit that amount to the court agency, often probation, for distribution directly to you. This cuts your ex-husband out of the equation and ensures you receive the child support that is ordered, as long as he is working.
Garnishment of Unemployment or Workers’ Compensation Benefits, if Your Ex-Husband is Not Working
If your ex-husband is not working, the judge can order a portion of his unemployment or workers’ compensation benefits be redirected to you to pay for current child support or past-due child support. Again, this cuts your ex-husband out of the equation and makes paying child support involuntary for him, and a sure thing for you, while those benefits last.
Federal Income Tax Intercepts, When Your Ex-Husband is in Arrears on Child Support
The judge also has the power to order that your ex-husband’s income tax refund be paid directly to you instead. This is especially useful if your ex-husband owes past due payments, in that you can receive a lump-sum to pay or help pay off those arrears. Your attorney will obtain the appropriate court order from the judge and submit it to the IRS.
Child Support Penalties
If your ex-husband hasn’t paid child support, the judge can also impose the following penalties:
- Driver’s License Suspension or Revocation
- Passport – restrictions on foreign travel or revocation
- Warrant issued for arrest, which may be criminal or civil
- Finding of contempt of court
- Monetary fines, jail, or both
- Exclusion from receipt of certain government benefits such as food stamps
- Suspension, revocation or denial of professional or hunting/boating/fishing licenses
- Placing a lien on real property to cover payment
If your ex-husband is in the military, penalties for nonpayment of child support will differ but can include dismissal from service, depending on circumstances.
Federal Prosecution for Not Paying Child Support
Under the Deadbeat Parents Punishment Act, child support obligors who move to a different state in an attempt to avoid paying child support payments can be brought up on federal charges. Penalties for conviction under the Deadbeat Parents Punishment Act include mandatory restitution of unpaid support obligation and imprisonment for up to two years in extreme cases.
Can I Withhold Visitation
No. The visitation rights of the non-custodial parent are entirely separate from that parent’s obligation to pay child support. In other words, a child support obligor who hasn’t paid child support is still entitled to exercise any visitation rights granted by the court. The custodial parent must not restrict access to the children in retaliation for failing to pay child support.
If you restrict access to your children because your ex-husband stopped paying child support, and then you ask the court to order your ex to resume paying, the court may issue that order but also order you to stop interfering with your ex’s rights to visitation.
Frequently Asked Questions
What If My Ex Moves Out Of State?
Your ex-husband is required to make court-ordered child support payments no matter where he lives. If he has crossed state lines, you may have to seek enforcement of the child support order under the Deadbeat Parents Punishment Act.
Can Past Due Child Support Be Enforced?
Yes. A judge may order an increase in current payments to pay the arrears or place a lien on your ex-husband’s property in the amount of the arrears. Even if your ex asks the court to reduce the amount he must pay due to a change in circumstances, and the court agrees to the reduction, it will not apply retroactively.
My Ex Lost His Job, How Do I Get Child Support?
If your ex loses his job, he can ask the court to reduce or suspend child support payments. Even if the court agrees, any reduction or suspension will not apply to the child support he already owes, but to future payments.
If you are served with a motion to reduce or suspend child support payments due to a change in circumstances, be sure to answer that motion and appear. Your children may still be entitled to a portion of your ex’s unemployment benefits or workers’ compensation benefits. And, you will want the judge to include in the order the provision that your ex must inform the court when and if he obtains employment.
Does Bankruptcy Absolve My Ex Of Child Support?
No. Back-owed child support cannot be discharged in bankruptcy because it is a priority unsecured debt. It will not be discharged in a Chapter 7 case, but child support arrears can be paid in a Chapter 13 plan over three- or five years.
During the pendency of any bankruptcy case, the debtor must continue to pay child support. If he does not, you can file a motion for Relief from the Automatic Stay to Enforce a Child Support Order.
Find Another Income Source
As you’ve read, there are ways to enforce a child support order, but if your ex simply does not have the income to pay court-ordered child support in full or at all, you will need to find another source of income for your family. It is better to do this before money becomes a problem.
Even if you have young children at home, virtual part-time work-from-home opportunities abound. And if you have school-aged children, you have the hours during which they are in school to hold a part-time job.
In any event, you should save and create an emergency fund for the day that your ex will not or cannot pay child support. Be proactive to ensure financial stability for you and your children in case your ex-husband refuses to pay child support, or simply cannot due variables in the economy or lack of employment.
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