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How To COLLECT ARREARS For CHILD and SPOUSAL SUPPORT?

Q. I am owed past due support from my ex. How should I proceed to collect this?

A. There are several strategies you can employ, including a contempt citation (which can be problematic, expensive and time-consuming), to collect delinquent child and spousal support. Family Code section 291 provides that support orders are enforceable until they have been paid in full or otherwise satisfied. It also relieves parties of the requirement to renew Judgments that otherwise applies to civil litigants.

I believe that in all cases it is an absolute must that you obtain a Judgment on Arrears, whatever else you decide to do. A court order for support, except when an obligor is employed thus permitting a wage assignment to be an effective way to ensure that employers comply with support orders, is often only a half measure on the road to collection.

If you have a court order which the other party refuses to comply with, before you can collect (i.e., execute) against assets you must have a Judgment. A support order is not a Judgment. In order to obtain a Judgment you must file an OSC or Notice of Motion which is accompanied by Judicial Council Form FL-490 entitled "Application to Determine Arrears ". Use of this form is mandatory - if you don't complete and file it along with your OSC or NOM, your application will be denied without prejudice, forcing you to start over.

Form FL-490 should be supported by Form FL-420, entitled Declaration of Payment History. Form FL-421 is a payment history attachment that gives you more space to outline more past due support payments.

The Judicial Council has provided Instructions for how fill out the payment history forms, and to properly present your application to determine arrears.

The problem with court ordered support, when a person refuses to comply, is that you can only obtain a Judgment on payments that have become due and were missed - your remedy only looks backward and you will need to present a later application to obtain a Judgment for future support that remains unpaid, after it becomes due.

Once you have a Judgment, the first thing you should do is submit to the Court clerk for issuance an Abstract of Judgment. This is then recorded with the County Recorder for each California county where the debtor resides, or where he or she may own interests in real estate (whether as a secured creditor or as an owner). When and if that interest in real estate is ever transferred through an Escrow, the Title Company will pick up the Judgment and require that it be satisfied as a condition to closing escrow (i.e., for sale or refinance).

An Abstract can also be useful to collect against people in certain industries, like real estate brokers who receive commissions from escrow companies when deals close, in that since the Abstract is a mature judgment, serving it upon a person or entity who is transferring money to your obligor will convince them to satisfy the Judgment to you rather than paying the money over to the obligor, since otherwise this innocent third party may be exposed to a claim that they now owe the money to you.

The other thing you may wish to consider is obtaining a Writ of Execution. You can seek this at the same time as you seeking your Judgment by requesting a Writ issue as an additional item of relief in your judgment arrears' application. This Writ can then be served upon a banking institution where the obligor holds accounts, and so be used to effectively lien the monies the debtor may have on deposit. More difficult, but sometimes successful, strategies can also include attaching personal property (i.e., a car that is free and clear) for sale to satisfy the delinquencies.

In the event that you are applying to the Court for other orders, like support modifications, it makes good sense to include an application to determine arrears within that package of requests. One of the problems with not having a Judgment already in place is that if you learn that your obligor is coming into money, you won't likely be able to get in front of a judge fast enough to obtain the Judgment before your opportunity to collect evaporates.

~ Thurman W. Arnold, III, CFLS ~


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