Past due child support is an issue that almost all divorced families deal with. Only about 40 percent of obligees (people entitled to support) receive the full amount. For both obligees and obligors (people paying support), past due child support is a time bomb. For obligees, several hundred dollars a month of lost income eventually means missed bills. For obligors, past due child support eventually triggers the enforcement process, which is outlined below.
Usually, children are caught in these explosions. Obligees often refuse to allow delinquent obligors to see their children. This tactic is illegal, but it happens. Obligors often stop coming around, so they aren’t subject to chastisement for missing payments.
The Attorney General has jurisdiction over part of this process, usually level two and level three enforcement. But the state is notoriously slow in these situations. Furthermore, the Attorney General often doesn’t bother with modification or level one enforcement, which are necessary steps in the process. For these reasons, if you owe child support or are owed child support, reach out to a Marietta family law attorney straightaway.
Laying the Groundwork
Usually, a court won’t enforce an outdated order, especially if another judge issued it. So, without proper modification action, enforcement action may be a waste of time.
Let’s examine the second part first. Cobb County judges only have jurisdiction over Cobb County cases. The same is true in Fulton County and everywhere else in Georgia. Therefore, the first order of business is usually transferring a case to the appropriate county.
Usually, this step simply means filing more paperwork. However, if the prior order was issued out of state, the matter is more complex.
Different states have different child support models. Some states are income share states. A wide variety of factors, such as the proportional income of the parties and the proportion of overnight visits, usually determines the child support obligation. Other jurisdictions are percentage-of-income states. The obligor’s income is basically the only factor.
The Uniform Interstate Family Support Act basically translates one state’s Legalese into another state’s Legalese. UIFSA sets uniform standards for interstate child support amounts.
Next, if financial and/or emotional circumstances have substantially, permanently, and unexpectedly changed since the prior order, and they probably have, the prior order must be modified.
Income changes are the most common basis for modification. Usually, a 10 percent income change is a substantial change. The change must be permanent, not due to a bonus or temporary business downturn. Finally, the change must be unexpected. Obligors cannot quit high-paying jobs to reduce their child support obligations.
Roughly the same rules apply to emotional modifications, usually a change in the proportion of overnight visits.
Level One Enforcement
Frequently, delinquent obligors want to do the right thing, although they may be somewhat reluctant to do so. Therefore, they need incentive and a way out. A combination of a lien and a demand letter, followed by a voluntary agreement, checks these boxes.
Credit and property child support liens have no immediate effect. But they loom large when the obligor tries to sell property or borrow money.
A lien usually encourages delinquent obligors to pay close attention to demand letters. These letters state the problem, present a solution, such as half the arrearage upfront and the other half added to monthly payments, and include a subtle “or else” threat.
The voluntary agreement portion is very straightforward. A Marietta family law attorney drafts the order, the obligor signs on the dotted line, and the judge approves the order. The new order, which may be a modified order as mentioned above, is now legally enforceable.
The Attorney General almost always skips this stage because it doesn’t immediately produce revenue. The AG is only interested in collection statistics. The AG doesn’t care if more advanced enforcement measures throw gasoline onto a fire and make matters worse.
Level Two Enforcement
If the obligor is more than three or four months behind and/or uncooperative, a Marietta family law attorney must usually go to level two, which usually means a wage garnishment order, payment intercept, and/or account levy.
Most family law court orders include latent withholding orders. The obligee must simply serve that order on the obligor’s employer. Usually, the order can withhold up to 50 percent of the obligor’s net income for arrears and current support. These orders can be tricky. Many employers use out-of-state payroll processing companies.
Payment intercept is appropriate if the obligee expects a large financial windfall, such as lottery winnings, a stimulus payment, a government loan or grant, workers’ compensation or other government benefits, or a big tax refund.
Marietta family law attorneys often levy bank accounts if the obligor is self-employed and/or concealing income. Many obligors move money into LLC or offshore accounts.
Level Three Enforcement
Probation or incarceration is a last resort. No one wants to restrict an obligor’s liberties. Furthermore, most judges won’t sign such orders unless level one and two have failed and failed badly (e.g. the obligor agreed to pay and didn’t follow through with that promise).
Debtors prisons have been illegal in the United States for almost two hundred years. However, a failure to pay child support is technically a failure to obey a lawful court order. That’s another reason it’s so important to lay the proper groundwork and not just rush to the enforcement stage.
Ironically, probation or incarceration usually resets the enforcement process. The obligor usually pays a chunk of the arrearage upfront and promises to pay the rest over time. If the obligor doesn’t make accelerated payments as agreed, the enforcement process begins again and could eventually lead to more, and longer, prison time.
The inevitable result of modification and enforcement is collection. For a free consultation with an experienced Marietta family law attorney, contact The Phillips Law Firm, LLC. Virtual, home, and after-hours visits are available.
