It’s a common situation: You’re a single parent, and your ex has stopped paying child support.
According to the U.S. Census Bureau, just 41.2% of custodial parents received the full amount of child support owed to them in 2009. In fact, the report says nearly a third of parents got nothing at all. And because these parents were more than twice as likely as the general population to be poor, that’s money they really need.
Luckily, federal and state laws are generous to parents of either gender who are owed child support. State and local government agencies in every state will collect from “deadbeat” payers. A parent seeking to collect unpaid child support has the right to garnish the other parent’s wages, have his or her driver’s license suspended, empty bank accounts and stop real estate deals. The federal government will not issue a new passport to someone who owes unpaid child support. Child support debts cannot even be discharged in bankruptcy, although the payments may be lowered.
And while laws in different states may differ, there's no fleeing your responsibility: According to the Deadbeat Parents Punishment Act, parents who move across state lines in order to avoid child support payments can be charged with a felony.
Some parents in this situation might be dreading going back to court; others might be looking forward to it. But Jim Hennenhoefer, a San Diego family lawyer, says a punishing court case should be the last resort.
“The last one, the least desirable one, the one you only do if there’s no hope … is contempt [of court],” says Hennenhoefer, a family law specialist certified by the State Bar of California.
So, if you're in this situation, where should you start?
First, Get It in Writing
In all states, child support obligations are created by court orders. You probably got your child support order as part of a divorce or support case. Even if you didn’t go to court in person—which can happen when the court just approves an agreement the parents made—there should still be something in writing. That’s your starting point. Even if you’d rather resolve the issue out of court, a court order gives your ex an incentive to negotiate.
If you never made a formal written agreement with your ex, it’s time to go to court. Without anything in writing, there’s literally nothing to enforce. A government child support enforcement agency (see our section on Getting Help From the Government, below) can often help you get an order, or you can hire an attorney.
Then, Can You Talk?
You don’t have to start by talking with your ex—but family law experts recommend that you try. Negotiating is quicker than any collection effort, less likely to create bad feelings and far cheaper than a court case. For those reasons, it’s usually in the best interest of the children. But don’t do this if you can prove your ex is lying about his or her finances, or when there’s a history of domestic violence.
Even if you do agree on changes to your written agreement, you should spell them out and get your deal approved by a judge. Remember, if there’s no court order, your rights under the new agreement aren’t enforceable. Attorney fees for an uncontested change in a support order should be relatively low.
We'll show you a few options to pursue getting a court order below.
Ways to Collect
Once you have the court order, there are several things you can do to get paid. You (or someone representing you) can take the order to your ex’s bank and tap into his or her accounts.
You can also go to your ex’s employer and ask to garnish his or her wages. That means a portion of each paycheck is paid directly to you. (State law may limit the amount you can get this way.) And if your ex is owed a state or federal tax refund, you can often use your court order to have the refund paid directly to you.
Another way to get paid is to create a lien—a legal encumbrance—on your ex’s property and credit. Your ex won’t be able to sell the property or get credit until the obligation to pay you is addressed. Hennenhoefer says a lot of support orders are enforced in this way. To create a lien, you need to record the judgment from your original case in any U.S. county where your ex lives or owns property. With luck, the attorney you used in your child support case will have already done it—but double-check.
Laws in every state revoke driver’s licenses and professional licenses from people with unpaid child support. This won’t necessarily get you your money, but it will give the other parent a strong incentive to address the issue.
Getting Help From the Government
If you need help, one option is to use your local child support enforcement agency. These agencies are in every state; you can search for yours here. If you’re receiving welfare benefits, the agency may have already automatically opened a case for you. If you’re not, the agencies typically charge a low fee for their services, such as $25 a year. These agencies can take all the collection actions listed above, using all the powers of the government. You are allowed to use both the agency and an attorney if you like. If your ex lives in a different state, your local agency will contact the agency in that area.
Hiring Your Own Attorney
A child support attorney is a more expensive option, but also the most responsive. A lawyer can help you pursue all of the above ways of getting paid, or make direct collection phone calls. He or she can also guide negotiations with your ex. And if you can come to an agreement, you’ll need the attorney to help you formalize the agreement with a new court order.
In addition, you may need a lawyer if you decide to ask a judge to hold your ex in contempt of court. This is usually only possible when you can show that your ex is willfully withholding payments. It’s also the most expensive option, because it requires a lot of your attorney’s time. On the plus side, if the court does hold your ex in contempt, it has the option to order him or her to pay your attorney fees and court costs as well. And Hennenhoefer says it’s effective.
“It’s amazing how many men find the money to pay support after they’ve sat in jail for two or three days,” he says.
When Your Ex Truly Can’t Pay
Of course, none of these enforcement options will be useful if your ex doesn’t have the money. In this situation, you may want to negotiate a lower child support payment. Courts will change a support order when there’s been a material change in circumstances, which includes reduced income for the payer. You can negotiate this out of court and just have the judge approve it, or a judge will decide on changes if you can’t agree.
Don’t Let It Slide
Hennenhoefer says one of the biggest mistakes parents make is not acting quickly enough.
“Don’t enter into arrangements where he calls you and says, ‘Look, I’m only going to pay you X,’ and you acquiesce to it and take years and years before you do anything about it,” he says. “If you let him get away with it, he realizes he will be able to.”