Child Support Awareness month is a time to recognize the vital role child support plays in the lives of millions of children. For many, a monthly child support payments is all that stands between them and poverty. As such, more and more states—like California, Maryland, Minnesota, New York, Oregon, and Pennsylvania—have made a national “call" in an effort to draw attention to the issue of unpaid child support.
If you are wondering how widespread the problem is, just note the U.S. Census Bureau’s Custodial Mothers and Fathers and Their Child Support in 2009 (which was released in December 2011). According to the report: among the 6.9 million custodial single parents who were awarded child support in 2009, only 41.2% received all of the child support money that was due—a 46.8% decrease from 2007.
I have had clients from outside the United States who either lived abroad in countries like Germany, Brazil, Hong Kong or traveled abroad to the Philippines, Europe or Canada who cannot re-enter the United States. This is due to the substantial arrearages (unpaid child support) and Department of Homeland Security with the assistance of the states Department of Child Support will not renew their passport or suspended use of their passport until a full payment is received and the child support office clears the passport.
As many individuals who are paying child support are well aware, the laws in this area are highly regulated and public policy supports active collection of the money for the care of a minor child. The reach of the government is very broad. For example, they can garnish your wages, intercept tax refunds, lottery winnings and failure to pay can mean negative reports on your credit and non-renewal of your passport. Many assume that back due child support payments (“arrears") are dischargeable in bankruptcy court. This is not true. This debt is due until paid in full or a waiver (for non-assigned arrears only).
The laws support the strong policy that a parent’s first and principal obligation is to support his/her minor children. Each parent has equal responsibility to support the child. The court has the authority to order either or both parents to pay any amount necessary for the support and education of their child.
The state has a mandatory uniform child support guideline to determine the amount of child support. The court cannot deviate from this guideline amount unless it finds ordering a different amount than the guideline amount is in the child’s best interest or the application of the guideline is unjust for reasons enumerated in the Family Code. The reasons, however, are very limited, giving the court very little discretion.
It is critical if there is a significant change of circumstance that the non-custodial parent go to court to obtain a court-ordered modification of the current child support order.
Let us assume you had just been laid-off. You must immediately file a motion to modify your existing child support order. A modification requires a “change of circumstance(s) since the last order. If any of the factors described above change, you have a right to have your case heard. However, it is up to you to bring a motion for a modification and a court order must take place before a monetary change can occur. Many simply stop paying the current order and never file a motion. As a result, arrears build up and the “nightmare" that accompanies nonpayment of child support begins.
Arrears are past due child support. It is created when nonpayment of a court order occurs. Interest by law accrues at a rate specified by each state. In California, it is 10%.
Generally, arrears owed to the local child support agency for public assistance reimbursement may be negotiated downward if certain requirements are met. This is very difficult to achieve. An easier route would be if the custodial parent never received government assistance and all the monies are owed to her. If this parent agrees to a pay-off amount less that what is owed, the government rarely interferes with the arrangement.
It is critical that the court accepts the pay-off agreement. Having a fair and efficient attorney establishes to the judge that offensive tactics were not used to have the custodial parent waive substantial monies.