Note: You do not need to be divorced or going through a divorce to find this article helpful. This article is not intended to benefit only those who have received an order, but also those who are being told the opposing side “cannot” pay child support.
I meet divorcees or custodial parents who tell me, “I’ve been awarded child support, but it doesn’t matter. My ex never pays.”
There are ways to collect child support from a deadbeat without his or her cooperation.
There are even easy and convenient ways to assure your ex pays child support, if your ex has a job with an employer who issues paychecks.
Even for the ex who is self-employed or being paid “under the table,” there are still creative ways to ensure child support is collected.
Immediate and Automatic Income Withholding
After any order regarding child support is entered by the court, a parent who has been awarded child support on behalf of his/her children (the “obligee”) may seek the services of the Office of Recovery Services (click this link to be taken directly to their home page) to engage in automatic income withholding from the parent ordered to pay (the “obligor”). The Office of Recovery Services (“ORS”) will charge a $10.00 monthly fee for its collection services, but that fee can be ordered paid either by you or by the parent ordered to pay child support.
Gather Evidence of Income and File a Motion for Order to Show Cause
If income withholding alone is insufficient to collect the support obligation (such as when your ex changes jobs frequently, moves to different states, or is being paid under the table, all hope is not lost. First, compile any evidence you have demonstrating your spouse’s gross income. Does your spouse spend $10,000 per month and have no debts? This is a good indication that your spouse has a source of income that your ex is not disclosing. It is to your benefit to do the digging and find out. An attorney is helpful in this matter because once a case has been filed the investigation process (known as “discovery”) allows you to compel your ex to provide his/her bank and credit card statements, tax returns, pay stubs, and other financial information.
Whether you have evidence that your spouse can pay court-ordered child support, you can still file a “Motion for Order to Show Cause” asking the court to hold your ex in contempt for failing to pay. Your motion cites to the relevant portions of the support order, explains when and how your ex has not complied with the order, and seeks sanctions to make it painful for your ex if your ex continues to refuse to pay. How painful? How about jail time, revoking driver and professional licenses, community service, and parenting classes? Indeed, if the situation is so egregious, the court may immediately order jail time and/or sanctions.
Requiring a Bond or Other Security
There comes a point when automatic income withholding and orders to show cause just may not be enough. After some time, automatic income withholding and orders to show cause may become too stressful, too time-consuming, too expensive, or too impotent. Once again, if your ex is self-employed, moves state to state, or changes jobs frequently, thus making it difficult to nail him/her down and obtain child support, the next best option may be to request the court to order the obligor parent to obtain a bond.
Utah Code § 62A-11-321 (Posting bond or security for payment of support debt—Procedure) provides:
(1) The office shall, or an obligee may, petition the court for an order requiring an obligor to post a bond or provide other security for the payment of a support debt, if the office or an obligee determines that action is appropriate, and if the payments are more than 90 days delinquent. The office shall establish rules for determining when it shall seek an order for bond or other security.
(2) When the office or an obligee petitions the court under this section, it shall give written notice to the obligor, stating:
(a) the amount of support debt;
(b) that it has petitioned the court for an order requiring the obligor to post security; and
(c) that the obligor has the right to appear before the court and contest the office’s or obligee’s petition.
(3) After notice to the obligor and an opportunity for a hearing, the court shall order a bond posted or other security to be deposited upon the office’s or obligee’s showing of a support debt and of a reasonable basis for the security.
Utah Code § 62A-11-321 provides that the court may require an obligor to post a bond or provide another security for the payment of a child support obligation sufficient to guarantee payment of his/her child support obligation for a period of time (it is wise to seek a bond or other security to secure payment for at least two or three months, which will give you time 1) to breathe, and 2) to ensure—one hopes–child support is paid until follow your ex gets paid at his/her new job).
Interception of Tax Refunds
You may also (along with any other option or combination of options discussed above), seek to intercept your ex’s tax refunds. If the obligor parent has not paid child support in full, then his/her overpayment in taxes can be ordered paid to you. This can be done under Utah Code § 59-10-529 (Overpayment of tax – credits – Refunds).
Under this approach, where the obligor parent has child support arrearages, you should ensure that the court orders that if a tax refund in any given year in which there are child support arrearage, the obligor’s tax refund should be intercepted and automatically applied toward the obligor’s outstanding child support arrearage balance.
Offer to Provide an Accounting
If the child support obligor thinks you’re squandering his/her monthly child support payments, you may get cooperation (and payments on time and in full by offering to provide an accounting of how you spend the money each month. Utah Code § 78B-12-217 (Accountability of support provided to benefit child—Accounting) provides:
(1) The court or administrative agency which issues the initial or modified order for child support may, upon the petition of the obligor, order prospectively the obligee to furnish an accounting of amounts provided for the child’s benefit to the obligor, including an accounting or receipts.
(2) The court or administrative agency may prescribe the frequency and the form of the accounting which shall include receipts and an accounting.
(3) The obligor may petition for the accounting only if current on all child support that has been ordered.
Providing an accounting of how you spend child support may be the “cooperative” or “collaborative” answer to the problem.
If you are not receiving the child support you were awarded, do not suffer in silence. Unless the obligor parent has no income and truly cannot earn an income, you do not have to suffer because of a deadbeat obligor.
You may fear that if you try to collect arrearages and/or enforce child support the court may modify the child support order so that your ex is allowed to pay less. This may happen, although there are steps you take do to prevent this from happening (show the court that your spouse is voluntarily under-employed or unemployed, hiding income, etc.), but if you are not being paid or paid in full anyway, the “risks” are essentially non-existent. Besides, would you rather get a reduced child support payment each month, or nothing each month?It may not always be as simple as seeking help from ORS, but protecting your finances and your children’s financial security does not leave you without options.
———————————- Get creative if you are trying to prove your self-employed ex’s income is higher than he/she states. People often exaggerate their income on loan or credit applications. You can subpoena the lenders to which your ex submitted any loan or credit applications to see what income your ex claims. If you are in the process of divorcing your spouse, and your spouse is a member of a church that keeps track of its members’ tithing, one “creative” way to determine income is to access those tithing records. Members of the Mormon (LDS) church, for example, are asked to pay 10% of their income to the church. Obtain those donation records and you may have at least some evidence of your ex’s income that he/she reports to the church.
Utah Family Law, LC | 801-466-9277 | divorceutah.com