Child support payments are intended to make sure both parents continue to share responsibility for the financial needs of their children. Unfortunately, in a contested San Jose divorce, the parent who is ordered to make child support payments often attempts to withhold payments to “punish” his or her ex. This leaves the custodial parent scrambling to make ends meet and unfairly burdens the children.
If your ex has been ordered to pay child support and is missing payments or only paying part of what is owed, it is best to contact them, in writing, and make clear that they are not complying with the current support order. The Courts prefer to see that you attempted to resolve the problem informally before filing a Motion to enforce the Order. If the problem is not fixed quickly, then you should pursue legal action without delay. If legal action is not pursued in a timely fashion, a custodial parent risks losing his or her ability to collect, since the other parent might move to somewhere you cannot find him/her, lose their job, or die. Child support obligations are not dischargeable in bankruptcy, but that Court Order saying you are owed funds is only good when there are locatable funds to collect.
If you’re concerned about attorney’s fees, the court allows custodial parents to request that non-custodial parents contribute to the legal fees incurred to collect the support, but that topic can be very complex and fact based. You should ask your San Jose divorce lawyer about whether the other party can be made to pay part or all of your legal fees associated with enforcing the child support order.
Wage assignment is usually the best and most effective way to make sure a child support order is enforced. A judgment lien on real property or a writ of execution may be considered as well. Sometimes a Notice of Delinquency, advising that a California Court can impose a penaly of 6% per month (72% maximum) for any support payments that are more than 30 days overdue will shake the non-payer into making payment.
Depending upon the circumstances, a non-custodial parent can have his or her driver’s license or professional license suspended for failure to pay child support. Occassionally the Court might even send the willful non-payer to jail for Contempt of Court; however, since these suspensions can impact the non-custodial parent’s ability to earn a living, they may cause him or her to fall even further behind on support payments.
Many parents make the mistaken assumption that child support enforcement can only be effective if the non-custodial parent has not moved out of state. If your ex has moved to another state since your divorce and you can prove that the failure to pay child support is willful and deliberate, he or she can be charged with a federal crime under the Child Support Recovery Act of 1992. This carries a sentence of monetary fines and up to six months in prison for the first offense.
As a parent, it is your responsibility to be an advocate for your child. If your ex is not carrying out his or her legal duty to pay required child support payments, a San Jose divorce attorney can help you decide the most appropriate course of action.