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Child Support Arrears

Posted by attorney Jordan Gerber

Congratulations, your divorce is over! Whether your dissolution of marriage was disposed of by final judgment or per settlement agreement, there is an overwhelming sense of relief that now you can move on with your life. Unless, of course, the day comes when you stop receiving child support from your ex or, alternatively as the payor spouse; you are served with an enforcement lawsuit to collect child support arrears. Now what?

The first thing to keep in mind is that child support is a right belonging to the child. Parents cannot contract away their child’s right to support, nor waive it by acquiescence to nonpayment as the trial court has the ultimate discretion to determine the amount of child support. That said, if you fall on hard times and your ex says it’s okay to miss a few payments, you better think twice about their generous offer and hightail it to your attorney’s office ASAP to file a Supplementary Petition for Modification of Child Support. Remember, the modificationonly dates back to the date of filing of the modification so the longer you wait, the higher the arrears owed. Child support is a right vested in the child so the Court will not go back and reduce the amount of the support past due absent a finding of extraordinary or compelling circumstances. Without having requested a modification, not having enough money to meet your obligation (for whatever reason, even by no fault of your own) will not suffice.

Trying to collect on unpaid child support? A court has the jurisdiction to enter both a judgment for arrearages and/or orders effecting contempt enforcement when appropriate and enforcement may be sought by the parent after the child has reached the age of majority. There are a variety of enforcement measures available to collect past due payments such as the interception of IRS tax refunds, seizure of financial accounts, liens against personal and real property, suspension of licenses and even incarceration if it is found the payor has the ability to pay and has been willfully avoiding said payment. A party seeking to collect child support arrears may also obtain a Qualified Domestic Relations Order (QDRO) on the payor’s pension or 401k as an aid to enforcing a previously entered support judgment.

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