Child support refers to court-ordered payments from one parent to another. These payments are generally made monthly, and are made from the noncustodial parent to the custodial parent. Child support payments are intended to provide financial assistance to the custodial parent, as each parent has a duty to provide their child.
Each state maintains its own laws regarding child support payments, as well as its own calculator to determine how much a person should pay per child each month. These laws govern the amount of support based on custody, as well as each parent's income and finances. Child support payments may be ordered when the parents have divorced or legally separated, or are otherwise no longer living together. It is important to note that child support is not necessarily automatic; in some states, the parent will need to petition the court for child support.
When the court is petitioned, they will consider the financial statements provided by each of the child's parents. The court is dependent upon those statements when determining what is in the child's best interest, as well as each parent's ability to financially provide for their child. As previously mentioned, although each state may vary, the court generally requires some type of certification from the parents which serves to assert the accuracy of the information they have provided.
Child support application fraud can be committed by either parent; however, most instances involve the non-custodial parent attempting to deceive the court in order to avoid paying child support. An example of child support application fraud would be when one or both parents provide incomplete or inaccurate information with the intent to influence the court's decision regarding whether child support should be ordered, and in what amount.
The non-custodial parent may accomplish this by hiding additional income sources, such as income from investments. Alternatively the custodial parent may overstate the child's expenses, or include expenses that are not associated with the child's needs. An example of fake child support papers would be when the custodial parent inflates the child's expenses in order to cover personal leisure items that are not associated with the child or their wellbeing in any way.
Lying About Your Income To Avoid Child Support. What are the Consequences for Child Support Fraud?
Non-payment of child support, which includes child support fraud, is taken seriously. Child support enforcement agencies exist at the state and local levels, and maintain resources to enforce child support orders. They may also draw from public funds in order to provide for the child. Because of this, government child support recovery efforts are considerably aggressive, and can result in significant consequences for the responsible party. This can include wage garnishment, as well as seizure of personal property.
Additionally, if the court finds evidence that the child support payments are being used for anything other than the benefit of the child, they may order an investigation into the custodial parent's expenditures. This investigation may interrupt the flow of support payments, and affect the court's decision regarding custody rights and visitation schedules.
Another potential consequence would be if the court orders a retroactive adjustment. This may be ordered if the noncustodial parent hides information regarding their financial situation in order to avoid paying their fair support. An example of this would be getting paid under the table to avoid child support payments. Another example would be not reporting income increase to child support. The court may also order a retroactive adjustment if the noncustodial parent otherwise disrupted the timely determination of child support.
It is important to note that child support fraud can also result in state and federal criminal charges. Because the information provided to the court is made under oath, fraud may constitute a charge for contempt of court, or perjury. When receiving a referral from either state or local agencies, the Office of the Inspector General may investigate child support cases in which the noncustodial parent intentionally fails to make child support payments.
If found guilty and convicted of child support application fraud or nonpayment, the at-fault parent may face imprisonment and fines. Additionally, they may be ordered to pay child support going all the way back to when they first hid relevant information regarding their financial circumstances in order to commit fraud.
Reporting Child Support Fraud
The steps to report someone not paying child support will depend on the state. Generally speaking, the process begins with contacting the state or local child support enforcement agency. The court may take additional steps to enforce the child support order.
Some of the ways in which a court might demand payment include, but may not be limited to:
- Wage garnishment, in which an employer is required to withhold a certain amount from the non paying parent's paycheck. This money is then forwarded to the receiving parent;
- Garnishment of the delinquent parent's tax refund;
- Placing a lien on the non paying parent's property;
- Revoking the delinquent parent's driver's and/or professional license; and/or
- Denying or revoking a United States Passport, if the parent owes more than $2,500.
Additionally, the parent being injured as a result of the other parent's child support fraud should contact the family court which is handling their case. They should petition for a child support order modification, in order to modify any existing child support order to update information about the non paying parent's financial circumstances.
Although the court will consider a change in circumstances and how those changes affect the child support order, the custodial parent is not allowed to make the unilateral decision to take on a large expense for the child and then force the other parent to help pay for it. An example of this would be the decision to send the child to private school instead of public school. Family courts will consider each situation on a case-by-case basis, and determine what share (if any) of a new expense each parent will be responsible for.
Filing Bankruptcy and Child Support Obligations
When someone accumulates more debt than they can handle, they may look to file for bankruptcy to restructure and even discharge some of the funds they owe to others. The U.S. Bankruptcy Code gives both business and individuals federal legal protections, as well as the opportunity to pay off a portion of their debts.
But while you may be able to avoid paying some of your obligations, there are certain debt categories that cannot be wiped away by a bankruptcy filing. Child support obligations are one of them.
Options for Individual Bankruptcy
Most individuals will file for bankruptcy protections under Chapter 7 or Chapter 13 of the Bankruptcy Code. Chapter 7 is generally utilized by people with limited incomes who do not have the ability to pay back all or a certain portion of their debts. The court will appoint a trustee to organize and prioritize the debts, take an inventory of the debtor's property, and sell certain qualified property to pay at least some of the debt.
Chapter 13 bankruptcy is referred to as a reorganization bankruptcy. Property is not sold when you file for Chapter 13 protection. If you successfully complete a court approved repayment plan, you may be able to keep some, if not all, of your property. With both types of bankruptcy, if you follow court orders and make payments when directed, at the end of the process all unsecured debts are discharged (in other words, forgiven). But not all debts are dischargeable.
Dischargeable vs Non-Dischargeable Debt
While most unsecured debts like credit card and medical bills may eventually be discharged, there are some debts that may not be discharged, no matter the Chapter you are filing under. These include:
- Certain state and federal taxes
- Fines levied by government agencies
- Student loans (with a few rare exceptions)
- Personal injury judgments for injuries sustained while debtor was driving drunk
- Debts owed to tax-advantage 401k and other retirement plans
- Debts owed to cooperative housing organizations (for example, a homeowners association)
- Court levied fines, including criminal restitution orders
- Spousal support and any attached attorney's fees
And, of course, this includes child support. As with court ordered spousal support, the law makes it a public policy point to make sure no one avoids their obligations to minor children, even under bankruptcy circumstances. Even property that may be exempt from sale under federal law may be seized and sold to ensure these obligations are met.
Priority of Unpaid Child Support in Bankruptcy Proceedings
Any debts for unpaid spousal support and child support will be very high on the list of priority debts during the bankruptcy process. In fact, it will be higher on the list than even unpaid taxes. In addition, attorney's fees attached to either one of the legal obligations are non dischargeable, although the unpaid support must be taken care of first. If you cannot pay the amount immediately, that does not mean that the debt disappears. However, the type of income that qualifies for bankruptcy purposes does depend on the chapter.
If you file for bankruptcy under Chapter 7, any income earned after filing is not considered part of the bankruptcy estate, and can be considered in determining child support obligations and used to pay child support in arrears. In a Chapter 13 bankruptcy, any income earned before or after filing is considered part of the bankruptcy estate.
Anyone seeking to impose a support obligation must request relief from the stay that the court places on that person's property. If a person who filed for Chapter 13 bankruptcy is already subject to a child support order and fails to make support payments, the court will usually lift the stay temporarily so that child support can be recovered.
Avoiding Child Support Increase
Showing the court that certain circumstances have changed can increase the child support payments. The parent can request the court to modify the official child support order either to be increased or decreased. The court will consider if there has been a substantial change in the circumstances such as change in the child's needs, an increase in salary, or the involuntary loss of job.
After this determination, the court may change the current existing child support order to reflect the changed situation. The order needs to be officially entered by the court, a simple written or verbal agreement among the parents will not legally suffice.
To avoid getting child support payments unfairly increased, be sure to reach out to a local lawyer to determine what your options are. Furthermore, the court allows for modifications but needs the parent to initiate the process and show the valid reasons for a modification of the child support order.
Generally, courts look to the child's best interests standard to determine what the child support payments should be. This includes a review of factors such as the child's well being, their physical state, mental state, and religious or cultural preferences.
Do Child Support Payments End Automatically?
No, the child support payments do not end automatically. The parent needs to reach out to the court and request the termination of child support payments. Typically, child support validly ends when the child reaches the age of maturity, passes away, gets married or leaves for undergraduate studies. However, there may be situations in which the child support would continue after the age of 18 if they reside with the parent or are disabled.
Getting Child Support Arrears Dismissed
Arrears are the amount of unpaid child support owed to the custodial parent. For example it could be a past due medical bill for the child that the parent failed to pay. Parents are allowed to seek help from the law enforcement and other governmental agencies in pursuing child support.
Each state has particular government agencies or law enforcement departments that are tasked with enforcing child support orders and assist in collecting past due support. These rules and procedures will vary by local state and counties. A local family lawyer can guide you in filing a motion to dismiss child support arrears, as well assist you with other related matters involving child support.
Some situations arise when a parent may file behind in making the child support payments with no fault of their own, such as loss of employment. Therefore, the court in some cases may waive some or all back child support, but these scenarios involve the cooperation of both parents. Once, there is an agreement the court will make a decision regarding the dismissal of child support arrears.
Back Child Support
Child support payments are payments one spouse pays to the other to support their child. Courts can order child support when parents get divorced. When parents get divorced, the parent with whom the child resides after the divorce is called the custodial parent. The parent who does not live with the child is called the non-custodial parent.
Courts often order child support payments to be made by the non-custodial parent to the custodial parent. Missed child support payments are known as back child support payments.
How are Back Child Support Payments Collected?
Child support payments are legal obligations imposed by a court. A parent violates an order of a court when the parent misses one or more payments. Parents who are owed back child support payments have a right to these payments.
A parent who is owed back child support because the other parent has refused to pay the support may ask a court to garnish the other parent's wages. The court can then order the other parent's employer to deduct wages so the wages can be used to pay back support. Employers must comply with these orders.
If the parent against whom the garnishment order is issued either loses their job, or the amount of the garnishment is insufficient to cover the back support owed, the parent owed the back support can use other legal remedies to get it. The parent owed support may have a lien placed on the other parent's property. A lien is a legal claim placed against real property (such as a house) or personal property (such as stocks, bonds, jewelry, and furniture). This gives the person who places the lien, called the lienholder, a security interest in that property. The parent owed support is then entitled to the proceeds from the other parent's sale of the property.
Can State Child Support Agencies Collect Overdue Child Support Payments?
Many states give child support enforcement agencies the power to collect payments that are overdue. The agency can act without the parent who is owed the money having to get a court order.
However, the agency cannot act without informing the delinquent parent. Under the due process clause of the 14th Amendment to the United States Constitution, states may not deprive individuals of life, liberty, or property, without due process of law. Due process of law requires the state to give notice to the parent who owes child support, that the state intends to use the collection power.
The notice explains the collection procedure. The notice also gives the delinquent parent the right to challenge the measure the state wants to use to collect the payment. The notice also informs the noncustodial parent of the date by which they must challenge the measure, and explains that if the parent fails to make the back payments, the state will take action to collect those payments.
These measures to collect back child support include:
- Unemployment Insurance Benefits (UIB) Intercept. Under UIB intercept, overdue child support payments are deducted from the weekly unemployment insurance benefit payments of parents who owe back child support;
- Taking of State and Federal Refunds of Income Tax. Noncustodial parents who owe back child support may have overdue child support payments deducted from their federal or state (or both) income tax refunds;
- Credit Bureau Submission. Child support payments are debts. The parent owing these payments is a debtor, and the parent who is owed child support is a creditor. A parent who owes back child support is said to be “delinquent” in payment. Parents who are delinquent may have their names given to the three major agencies for consumer credit reporting (Equifax, TransUnion, and Experian). Being listed as a debtor on a consumer credit report can lower a person's credit score. This means lenders may decide not to give a loan or extend credit to a delinquent parent until the debt (the past due child support) is paid;
- License Suspension. Some states suspend driver's licenses as well as professional licenses (e.g., pilot licenses, medical licenses, law licenses) until the back child support is paid; and
- Taking of Lottery Winnings. Some states that run lotteries take a portion of a noncustodial parent's lottery winnings, so that the money can pay for overdue child support.