Enforcing California Child Support and Alimony Orders
As a private person, you have a host of remedies. Some require the assistance
of an attorneys, other may not depending upon your relative interest and
motivation. These include:
Wage Assignment Orders
In all cases where California support orders are issued (or even if out
of state support orders are being enforced here), a Wage Assignment Order
(aka earnings assignment or income withholding order) must issue which
includes arrearages if applicable and once they have been determined.
Family Code section 5230. In order to be effective, these must be served by at least first-class
mail upon the obligor's employer. Not later than 10 days thereafter,
the employer is required to commence payments of the court ordered amounts
so long as and only to the extent that they do not exceed 50% of the employee's
net income per pay period. This must continue until the employer receives
notice of termination of the order. These orders take precedence over
any other kind of non-support assignment or wage garnishment. An employer
who wilfully fails or refuses to honor the earnings withholding order
is liable for the amount it should have paid over.
Family Code section 5241.
Support Contempt Proceedings
A party who wilfully refuses to comply with any court order, and specifically
an order for the payment of child support, spousal support, or an attorney
fee order, may be guilty of contempt of court.
Family Code section 290.
As to support, each monthly failure to pay all or any part of the court
ordered support is one count of contempt, and each count subjects the
contemnor to up 5 days in jail and a fine of up to $1,000. Because contempt
potentially involves jail time, they are difficult and expensive to prove
but they can be a very effective remedy for getting the attention and
compliance of a party who values their freedom. You will not succeed without
an attorney who has actual experience litigating them.
So long as you do not allege more than 35 counts of contempt, the other
party will not be entitled to a jury trial but in any case if they do
not have private counsel the family court is going to appoint the Public
Defender's office to represent them in the contempt proceedings only.
There is a 3 year statute of limitations for pursuing contempt for nonpayment
of support and attorney fees; there is a two year statute of limitation
barring all other forms of contempt of court orders.
Writ of Execution/Receiver
Support orders may be enforced like any other money judgment. This means
that you may obtain a Writ of Execution and enforce a money judgment against
bank accounts, or property, or even ask that a receiver be placed in a
business owned by the obligor to collect money as it comes in.
Interest; Bankruptcy; Renewal of Judgments in Support Cases
Support orders accrue interest at 10% from the date of each installment
Family Code section 155. Courts do not have discretion to relieve the obligor of the interest.
Interest is a serious matter, since at 10%, principal doubles every 7 years.
Unpaid support cannot be discharged in bankruptcy.
Support orders never die. California is one of the toughest states upon deadbeat father
s and deadbeat mothers. You do not need to renew a support judgment in order
to preserve it [Family Code section 291], unlike a 10 year rule of limitations for renewal of judgments that applies
for almost all other types of civil money judgments. There is no defense
for not paying a valid support order except possibly one - where the party
entitled to the support order disappears and actively hides the minor
child for whom the support is made during the entire period of minority,
then perhaps an obligor may succeed in having a court vitiate the support
order. However, the defense of laches (an unreasonable delay in enforcing
a legal right) may be asserted against the State in cases where welfare
was paid out for the benefit of the other spouse or a minor child but
a long, long time passes before any agency undertakes action to recover it.
Attorney's Fees in Collecting Unpaid Support
You may also be able to recover your attorney's fees incurred for your
enforcement action pursuant to
Family Code section 3557.
UIFSA in California
The Uniform Interstate Family Support Act has been adopted in every state,
and similar uniform rules for collecting support have been adopted in
many foreign jurisdictions which allow for enforcement of orders here.
The purpose of this uniform act is to augment and expedite spousal and
child support enforcement, and even the collection of related attorney
fees, wherever a support obligee (a parent who owes per a support order
in any state) moves or can or might be found. This way, to the extent
that someone relocates between States or simply works in a neighboring
state, and whether or not they are avoiding a support obligation, support
orders from any issuing state can be enforced quickly and efficiently.
If support orders issued in Maricopa County, Arizona need to be enforced
in Riverside County, California, certified copies of the out of state
decree are merely filed and registered here and immediately any and all
of the remedies outlined above become available. Even if the support obligor
doesn't live or work here, but owns property in this State, orders
can issue that can enforced against personal property or real estate.
The California UIFSA statutes are found at Family Code sections 4901 et
seq. You don't need to be a California resident to take advantage
of these rules.
Under certain limited circumstances child support orders issued in another
state may be modified in California. This means that if a payor parent
moves here, once the out of state support order is registered here it
may be possible to modify it under more favorable California laws. Conversely,
if parent and child live here and the payor parent does not but wishes
to avail themselves of California law, they too may be able to seek a
modification here. Once that occurs, California becomes the new jurisdictional
situs for further support modifications and enforcement. However, although
spousal support can be collected here, whether to modify it always remains
under the control of the original state where orders were issued.
Child Support Civil Penalty
This may be an extremely effective tool for collecting delinquent child
support in California: The child support civil penalty statutes found at
Family Code section 4721 - 4728. Essentially if the statutory procedure is correctly followed, each and
every unpaid installment of child support will incur a civil penalty of
up to 6% percent per month.There is a maximum 72 percent of the original
amount that can be imposed, but this 72% interest in a year! If this doesn't
get the deadbeat parent's attention, it is hard to imagine what will.
To avoid the child support penalty once the requesting party has given
proper notice of the delinquency, the obligor must pay the past due support
money within 30 days. If they do not, the obligee (party who is owed)
may file a motion for a judgment for the principal amount plus penalties
and interest. This presents the last opportunity for the payor parent
to work out a solution and convince the Court it is not fair to impose
the penalty. Thereafter, the judgment is enforceable in the same manner
as any other.
Child Support Security Fund
Another useful support collection tool in California is found beginning at
Family Code section 4560. This allows the Court to order that the child support payor deposit into
a court controlled account up to one year's worth of future support.
This account is then used to guarantee the normal flow of monthly child
support monies to the recipient parent. Family Code section 4570 provides
that if monthly installment thereafter is more than 10 days late, the
court shall order the recipient parent paid from that account and that
the account be replenished. Obviously, this method is more likely to enforced
as against an affluent deadbeat parent.
Department of Child Support Services Enforcement
If the Department of Child Support Services
(DCSS) becomes involved, additional enforcement options come into play. DCSS
must enforce orders where custodial parents are receiving State Welfare
and other forms of governmental assistance. In such cases, they may also
enforce spousal support orders.
Even if you are not receiving governmental aid you may assign your collection
rights for child support to the Department and they must enforce these
orders free of cost to you. However, they are over burdened, they are
a bureaucracy, and they are not your personal advocate. There are pros
and cons in utilizing their services.
For instance, they are able to intercept tax refunds and can access tax
records that are otherwise confidential or that the other party just refuses
to produce. They can force banks to give up information regarding cash
flow. They can cause the California DMV to suspend a driver's license.
They can take away Passports. They can suspend professional licenses.
They can seek criminal prosecution for Penal Code failure to support crimes.
DCSS employees are overworked and underpaid. Still, if you lack funds
and access to competent legal counsel, DCSS may aid you.
Author: Thurman Arnold