Child support refers to payments owed by one parent, referred to as the “non-custodial parent,” to the other parent, the “custodial parent,” or parent who has primary custody of the child or children. These payments are the non-custodial parent’s contribution to the cost of raising the child or children and providing them with the necessities of living, e.g., food, clothing, shelter, and the like.
They are past due when they have not been paid by their due date. Laws addressing past due child support usually only address payments that were ordered and enforceable by the court.
Support payments are usually due monthly. When the due date passes and payment has not been made, then the payment is said to be past due. Legally, parents who owe past due payments are said to be “in arrears.”
How Can I Collect Past Due Child Support Payments?
Both federal and state laws provide ways to collect past due child support payments from the parent who owes them. All states must have state child support enforcement agencies, and child support awards are automatically registered with these state agencies. In addition, child support orders issued by a court in one state must by law be recognized and enforced in all 50 states. These state agencies may charge a fee of no more than $25 to collect unpaid, past due child support.
The child support enforcement agency may be run by the state in which it is located or by the counties within the state. Most of them have their applications for services available online. A person could contact their local family law court for referral to their state’s Child Support Enforcement agency if they cannot locate the agency.
Once the aid of a Child Support Enforcement agency is sought, the child support payments are then paid each month through automatic income withholding. This means that the state agency collects the child support directly from the non-custodial parent’s employer, and the agency forwards the payment directly to the custodial parent. If a custodial parent is not receiving support payments from their child’s other parent, they can register their support order with their state’s child support enforcement agency.
The federal Child Support Recovery Act (CSRA) makes it a misdemeanor criminal offense for a person willfully to fail to pay a past due child support obligation. If a parent travels interstate or foreign commerce to escape a child support obligation, it is a felony criminal violation. It is also a felony criminal offense to fail to pay a child support debt that is more than $2,500 or has not been paid for over two years.
In most states and at the level of the federal government, the processes for the collection of unpaid child support are automated. When a threshold amount of unpaid child support is reached, numerous state and federal agencies are automatically informed of the past due amount.
The interested agencies then take various actions such as placing liens on state and federal income tax refunds, suspending driver’s licenses, and denying passport applications. Some states have experimented with seizing the automobiles of the non-custodial parent and holding them until the back child support payments are made.
Federal law requires that certain collection activities take place. Wage withholding or garnishment is the number one enforcement tool used. At the state level, state enforcement agencies have computers that contain information from employers about newly hired employees. The state’s computers can then match that data against obligated parents and produce an immediate wage withholding order.
Other enforcement activities are automated and are done when a certain threshold amount of past due child support is reached. Current federal law mandates that all states require immediate income withholding, or wage garnishment, of child support that has been ordered by a court.
Another option is for the custodial parent to return to court and seek enforcement of the order through the court. Among the ways that past due child support can be collected are the following:
- Wage garnishment;
- Placing a lien on the non-custodial parent’s real or personal property;
- Seizing the non-custodial parent’s income tax refund;
- Seizing other assets, e.g., bank or retirement accounts;
- Obtaining revocation or suspension of a driver’s license or professional license and making renewal contingent on paying the past due support;
- Seizing winnings from lotteries or gambling;
- Reporting the non-custodial parent to the credit reporting agencies;
- Having the non-custodial parent found to be in contempt of court, which may result in jail time and/or fines.
Courts generally do not want to take action that would limit a parent’s ability to pay the past due support. Therefore jail time is usually reserved for parents who have the means to pay, but have chosen not to do it.
What Is Retroactive Support?
Retroactive support usually refers to payments for expenses incurred for the support and care of the child before a court enters an order for child support. When child support is addressed as part of a divorce or legal separation, retroactive support refers to support owed from the time the lawsuit was filed up until the time the order for child support was entered. The custodial parent wants to specifically ask that retroactive child support be awarded as well as child support going forward.
Retroactive support might also be sought in other situations, such as when the custodial parent discovers that the non-custodial parent has hidden assets or income in order to pay lower amounts in child support. The custodial parent might then go to court seeking payments of retroactive support. Or, the custodial parent might have incurred extra expenses because of an emergency situation and might seek retroactive support to compensate for some of those expenses.
As a general rule, a child support obligation starts when a child is born. Therefore, a custodial parent can ask for retroactive support for things like medical bills for the birth of the child, assuming, of course, that the parents were not married at the time of the birth. In some states, a court might even award retroactive support for expenses incurred before the child was born, such as medical bills related to the pregnancy and childbirth.
Typically the custodial parent must ask the court for retroactive support within a certain period of time. For example, in North Carolina, a parent has three years from the birth of the child to file a lawsuit for retroactive support for birth-related expenses. In Texas, the maximum number of years for which a court will order retroactive support is four. In California, the custodial parent can ask for retroactive child support to cover the three years that preceded the filing of the application for child support with the court.
To collect retroactive support the custodial parent must be able to provide evidence of the past expenses, and also be able to show that the money spent was “reasonably necessary.” State law varies in terms of what kind of expenses qualify for retroactive support.
How Can I Enforce Past Due Support Payments?
Again, as mentioned above, law enforcement and government agencies are available to help custodial parents pursue past due child support. Every state has a child support enforcement agency that locates and pursues the non-custodial parent to enforce a child support order and collect the past due payments. A custodial parent’s best option is to register their child support order with their state or county’s child support enforcement agency.
Another option that a custodial parent has is to seek enforcement of a court order through the legal system. This would give the parent access to such methods as wage garnishment, placing liens on real estate owned by the non-custodial parent, and seizing bank and other accounts.
Do I Need a Lawyer for Help with Collecting Past Due Support Payments?
A qualified child support attorney can always help you with the process of collecting past due child support, if you are unsure of how to proceed.
An experienced attorney can advise you of your rights when it comes to collecting support and can represent you during court hearings, if it is necessary to go to court to get an order. A knowledgeable attorney will know your state’s laws and the options they provide for child support enforcement.
