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March 18, 2013

Child Custody and Support

Setting Guidelines for Child Support

Can a parent be forced to pay child support?

State and federal governments have a variety of techniques for enforcing payments of child support. The most common is a wage deduction order, by which an employer sends a portion of the obligor-parent’s wages to a state agency which then sends the money to the parent who has custody of the child.

Beginning in 1994, all new child support orders were required to provide for an automatic deduction from the obligor’s wages. The wage deduction takes effect immediately unless the parties have agreed otherwise or unless a court waives immediate deductions from wages. Even with such a waiver or agreement, the order must provide that a wage deduction will begin without returning to court if the person owing child support falls more than 30 days behind in payments. Wage withholding can be used to collect current support as well as past-due support.

Wage deduction orders are effective in collecting support if the parent is regularly employed and does not change jobs frequently. If the parent loses a job, there is, of course no wage from which to make a deduction. If the parent changes jobs, the new employer must be served with a deduction notice before wages are withheld.

If a parent is self-employed, the parent is still obliged to send payments, but the person to whom support is due cannot look to an independent employer to make sure that payments are sent on time.

For parents who are behind in support payments, the state also can intercept federal and state tax refunds. This is a useful remedy if the obligor-parent has a sizeable refund due. If the obligor filed a joint income tax return with a new spouse, the new spouse can show the enforcement authorities the portion of the income tax refund that belongs to him or her so that the spouse’s portion of the refund will not be intercepted.

In addition to seizing tax refunds, states also can place liens on property, such as real estate and automobiles to obtain past-due support.

Another penalty that states may impose on parents who have not paid support is a finding of contempt of court. A finding of contempt of court means that the person charged with contempt has willfully not done something that he or she has been ordered to do by the court - in this case, to pay child support. A finding of contempt of court can result in a fine, a jail term, or both.

Private attorneys can help parents with collection of child support. The attorney’s normal rates will generally apply, although in some states attorneys may be permitted to handle a case of past-due support for a contingency fee. Contingency fees are for the most part forbidden in family law cases, but they may be permitted if the issues is collecting past-due support. Charging a contingency fee means the lawyer will take a portion of whatever is collected, but the client will not have to pay the attorney’s fees if nothing is collected. (The client may be required to pay the attorney’s costs—filing fees, photocopying, and the like.) The amount of the contingency fee varies, but a payment to the attorney of one-third of the amount collected is a common arrangement.

Attorney fees also can be assessed against the party who was supposed to pay support, but did not. In that case, the parent who was supposed to pay support will pay for the attorney of the other parent in addition to his or her own attorney fees.

Another way of collecting past-due child support is to use a collection agency. Some collection agencies will handle collection of child support just as they handle collection of business debts or credit card debts. Collection agencies usually charge a contingency fee. Collection agencies can be found through the Yellow Pages.

>>How are child support guidelines set?
>>What is considered income?
>>Can a parent be forced to pay child support?
>>What happens when the parents share custody?
>>Must the noncustodial parent pay support if the child is with him or her for summer vacation?
>>Who pays for college expenses?

Practical Law Home | Child Custody & Support Home | Deciding Factors in Awarding Child Custody
Issues Surrounding Visitation | *Setting Guidelines for Child Support*
Adjusting Child Custody Arrangements or the Amount of Child Support