Each year, child support payments go uncollected. Child support arrears between 1975 and 2006, according to the federal Office of Child Support Enforcement, reached $105.4 billion. Most of the arrears are owed by those who make under $10,000, according to a report prepared for the Office of the Assistant Secretary for Planning and Evaluation (ASPE), Office of Child Support Enforcement (OCSE) and the U.S. Department of Health and Human Services.
Reasons for Arrearages
Reasons for being in arrears are many — some people just refuse to pay, but others wish to pay their child support but cannot because of a loss of a job or an unexpected illness or disability. If you are not paying child support because you don’t think you should, you need to catch up on what you owe and start paying child support, as the state will eventually catch up with you. Child support is for the benefit of your children, not your ex-spouse. If you are not paying child support because you cannot, you should approach the court before the arrears pile up on you. The court will look at your situation and may reduce payments to something you can afford, especially if your disability is permanent.
Approaching the Court
File a motion with the court that asks for a reduction in child support payments. If you became permanently disabled, explain that you became disabled, how you became disabled and when the ability to work stopped. State laws vary on child support modifications, but the court may reduce child support payments as of the date of the disability if you approach the court soon enough and can prove that your disability is permanent.
Drafting the Motion
When drafting the motion, copy the heading from the final judgment in your case. If you are not yet divorced, but have been ordered to pay temporary support until the entry of the final judgment, copy the heading from any other court pleading in your case. The heading contains the court name, its jurisdiction, the parties’ names and the case number. In some states, it also contains a division designator. Follow the format of other motions filed in your case, including the opening paragraph to introduce yourself and the motion. Number each paragraph, and include one allegation or fact in each paragraph. Include the date the final judgment was entered. If you don’t have a final judgment yet, include the date the temporary order ordering you to pay child support was entered. Child support may also be ordered in a domestic violence injunction — if so, state that a domestic violence injunction was entered, along with its date. In the second paragraph, describe the amount of child support that you were ordered to pay and how often you are supposed to pay it. If your state uses income deduction orders, use the income deduction order in this part of the pleading. Attach a copy of the document you are relying on to show the amount of child support ordered to the motion as Exhibit “A.” In the subsequent paragraphs, describe the circumstances. Include what happened to cause your decrease in income and whether the circumstances are permanent or temporary. Sign and notarize the pleading and file the original with the clerk of court. Mail a copy to your ex-spouse or soon-to-be ex-spouse. If your spouse has an attorney, send a copy of the motion to the attorney.
Financial Affidavit
File an amended family law financial affidavit to show your change in circumstances. The financial affidavit forms are available at your clerk of court, either online or in person, depending on your county. It is important that you file a new financial affidavit so the court can determine what the new child support amount should be, if it decides to lower or stop support, including figuring payments on arrearages.
If The Court “Finds” You First
If you ignore your situation, you will eventually get served with documents requiring you to appear in court to explain why you have not paid your child support obligation. It may be in the form of a motion for contempt or an order to show cause. In some states, the state sends you a demand letter. Do not ignore the court’s request. Be prepared to show why you have not been able to pay child support. Ask the court to modify child support if you have circumstances where you cannot pay the amount ordered. The court may reduce payments, plus give you low payments to catch up the arrears.
Purging the Amount
The easiest way to stop arrears is to purge the amount due. This means that you pay the total amount in arrearage. You can also petition the court to request that you pay the arrearage in more than one large sum. For example, if you are behind $10,000 in child support, and the state took your license away, or are threatening you with jail time, you may propose five equal payments over five months. If the court agrees with you and allows you to purge the arrearages, the sanctions for not paying will be postponed. If you complete payments as ordered, the sanctions are dismissed — you won’t go to jail and you’ll get your license back. But if you miss one payment, the court will require you to appear and explain why you missed the payment. If the court does not accept your reason, it may take your license again or even order jail time.