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Not Paying Child Support Can Lead to Jail
When a parent is not paying child support a civil contempt charge can significantly impact the situation. A parent who is delinquent in paying child support can be punished by being sent to jail. Let’s repeat that, the punishment for not paying child support can result in being incarcerated.
Which Court Ordered the Child Support?
This issue of not paying child support starts with which court issued the order and in which court is the order being enforced. In New York, divorce is governed by the Domestic Relations Law, and enforced by the Supreme Court. A Family Court Order of Support is governed by the Family Court Act and is enforced by the Family Court. I have an article on the differences between the two. However, a Supreme Court Child Support Order can be enforced in the Family Court, and a Family Court Order can be enforced in the Supreme Court. Yes, I recognize that this is a bit confusing, but I didn’t make the law.
Which court is being used to enforce the child support order will determine both the procedures used and in some cases the punishments.
Leveraging Domestic Relations Law Section 245 for Civil Contempt To Punish Not Paying Child Support
Under Domestic Relations Law Section 245, one spouse can invoke Judiciary Law Section 756 to initiate proceedings against their ex-spouse for failure to meet financial obligations which can include not paying child support. It is also used to enforce non-payment of other non-child-related items under the Judgment of Divorce.
This approach has been widely employed as the threat of fines or imprisonment often compels compliance with divorce-related financial responsibilities. However, it should be emphasized that if the accused spouse’s constitutional rights are compromised during this process, the charge may be subject to reversal.
I like to use this approach if the ex-spouse has failed to pay for a number of things, not just child support. For example, the ex-spouse was ordered to pay money or turn over a deed. Since the Family Court has no power over these items, I will include the nonpayment of child support as just one more thing.
Using the Family Court to Collection for Not Paying Child Support
If you are just seeking unpaid child support, then the Family Court route is the best, and fastest option. The Family Court is designed to deal with support and has streamlined tools to deal with a failure to pay child support.
The Family Court Act presumes that the noncustodial parent possesses the financial means to support their children under 21. In New York, the child support obligation goes to 21, not 18 years old. Therefore, non-payment is viewed as strong evidence of deliberate noncompliance with their obligations.
To enforce child support in Family Court, the custodial parent merely files a violation petition seeking contempt. You will need a copy of the child support order.
The Burden of Proof to Show Delinquent Child Support Payments
The initial burden of proof is on the custodial parent. That parent must show that there is a valid court order of support. Then they have not received support from the noncustodial parent.
The burden shifts to the custodial parent to show payment. If that parent cannot show payment then they are in serious jeopardy of being found in contempt.
The court can determine that non-payment is willful. Once the court determines that the nonpayment is willful, the court can send the noncustodial parent to jail for 90 days.
Many people mistakenly believe that if they are sent to jail the child support obligation is erased. It is not. Going to jail does not zero out the balance. If the noncustodial parent owes $10,000 and is sent to jail, not only will that $10,000 bill be waiting for them when they are released, but they will also face an additional 3 months of child support arrears.
Crafting a Defense in Nonpayment of Child Support
Individuals facing a contempt charge have several options for mounting a defense. It is imperative to be aware of the available strategies to safeguard one’s rights. Here are some common defenses:
- Inability to Pay: Demonstrating genuine financial hardship may serve as a valid defense. However, substantial evidence of financial difficulties is required. This is very tough, and absent serious medical conditions, it rarely works. Even loss of employment is generally not enough. If the noncustodial parent loses a job the court expects them to immediately go to court to file for a downward modification.
- Significant Life Changes: If significant life events, such as a substantial income reduction or unforeseen expenses, have occurred, they may be used as a legitimate defense. Nevertheless, strong supporting evidence of these changes is essential. Again, this is very tough.
- Lack of Notification: Proving that one was not properly informed about the court order or the consequences of non-compliance can be a valid defense. However, it is crucial to establish a genuine lack of awareness rather than mere neglect or disregard. This is almost always a loser as the noncustodial parent is generally in court when the order is issued.
Conclusion
Civil contempt proceedings are a potent tool for enforcing financial obligations in divorce cases. Understanding the distinctions between the Domestic Relations Law and the Family Court Act is essential when navigating these legal processes. Familiarizing oneself with the burden of proof, available defenses, and the potential avenues for challenging a contempt charge is crucial to protecting one’s rights and ensuring fair treatment.
It is advisable to seek guidance from a qualified legal professional in any contempt case to secure the best possible outcome. If you are seeking contempt against a nonpaying parent or subject to a contempt proceeding you need to consult with an attorney. Call Port and Sava at (516) 352-2999 for a free 15 minute consultation.
