Enforcing Child Support

Enforcing Child Support by Attorney Jes Beard return to Jes Beard's home page

Enforcement Options
To get help from a court to force a parent to pay child support, first you need an order setting child support, whether from a divorce, establishment of paternity, legal separation or other type of court order.

Once a judge has signed the order and it has been recorded by the court clerk, if the non-custodial parent (the parent who does not have custody and who has been ordered to pay support) doesn't make all of the required payments, or is several (at least five) weeks behind in making payments, you can take him or her back to court for contempt of court.

If the court finds the parent in contempt the court can punish them with up to six months in jail, though generally the court suspends the sentence the first time the parent is in contempt so long as they make stay current on their child support in the future. Even when judges do send a non-custodial parent to jail for contempt in failing to pay support, the court nearly always will allow the parent out if they make payment of some meaningful amount toward the arrearage -- this is called a "purge amount." (Remember that if you go to court to enforce an existing child support order, the court will want to know exactly how much the non-custodial parent owes you. Sit down and calculate the exact figure before you even file a petition for contempt, and remember that you'll have to swear under oath your figures are correct.)

But pursuing contempt of court is not the only thing you can do to enforce child support. Several different possible situations after getting a support order lend themselves to their own courses of action.

You can garnish the wages of the parent ordered to pay support. To do that you will complete information on the supporter's place of employment and address, as well as his or her Social Security number. Take them with you to the clerk's office of the court where child support was ordered and ask that they issue a garnishment against the supporting parent's wages. If the parent is at least one month behind in payments, the court should send out a garnishment to the employer and the support amount will be taken out of the supporter's income.

You can also execute on the supporter's property; in general, a car or a house -- having them seized and sold at public auction, with the proceeds beyond the cost of execution going to pay off the arrearage. Unfortunately execution is a fairly slow process and is less fruitful than garnishment since its very difficult to execute on property someone else has an interest in, which is the case anytime money is owed on a car or house.

Another possible approach in Tennessee is to file criminal charges for nonsupport, a Class A misdemeanor for a first offense, and a Class E felony if the parent has been convicted before, or if the parent has left the state of Tennessee to avoid paying support. Class A misdemeanors carry up to 11 months and 29 days in the county jail, and Class E felonies generally mean a sentence of from one to two years in state prison. To see the statute involved, TCA 39-15-101, click here.

You can get a wage assignment. Or you can get the Internal Revenue Service to intercept any income tax refund and send it to you. Read on for further information on both approaches.

But you can not deny visitation or deny contact by phone with the child. This would not only be contempt on your part, it's also bad for the child. Children need contact with their parents, even if the parent is not paying child support. The reason for having contact between the non-custodial parent and the child is not for the benefit of the non-custodial parent but for the benefit of the child. Denying visitation hurts the child, and since it is contempt of court it could also end up with you in jail.

To take the non-custodial back to court you can either hire an attorney or get an attorney for free. Click here to see how to get a free attorney, as well as seeing the advantages and disadvantages of doing so.

If you don't have a child support order -- get one. If you were never married to the father, you need to establish paternity and get a child support order at the same time. Again, if you can't afford your own attorney, click here to see how to get a free attorney. If you are married and your spouse has moved out and refuses to pay, you can also go to court to get an order of support.

Below are a variety of factual situations and possible approaches for dealing with them. (These approaches are not necessarily exclusive, and depending on the specific facts of your case might not be the best approach, but they are avenues you should at least consider.)

NON-CUSTODIAL IS EMPLOYED: Mandatory wage withholding (payroll deduction) is available for arrearages. (Click here to read TCA 36-5-501, the statute involved.)

NON-CUSTODIAL IS UNEMPLOYED: Unemployment Compensation is attachable for child support under Federal Law, or ask for a contempt hearing. At the hearing, you can ask the court to order non-custodial parent to look for work and provide proof to the court of the job hunt. Those that can't show a real job hunt generally get jailed for contempt.

NON-CUSTODIAL PAID UNDER-THE-TABLE: Ask the IV-D child support agency or your private attorney to run a credit check or conduct discovery to find assets. You can also ask the court for a judgment for back support. On any assets, you can execute the judgment against a house, car, motorcycle, etc. (you can also collect interest on the judgment).

NON-CUSTODIAL LIVES OUT OF STATE: Have the IV-D child support agency or a private attorney begin a URESA (Uniform Reciprocal Enforcement of Support Act) or UIFSA (Uniform Interstate Family Support Act), to establish or enforce an order. The local child support agency will send the petition to an office of the city where the non-custodial parent supporter lives, and that office will begin a court action to collect for you. While as explained below, the child support agency can help track down a parent failing to pay child support if you have the parent's Social Security number, everything happens much more quickly if you have the exact addresses and also the employer's name and address. The URESA or UIFSA approach nearly always takes a long time, often more than two years, so you need to start it as soon as possible. If the state where the other parent lives is close enough, you can also file a petition in that state in the county where the other parent lives (this approach is generally fastest).

NON-CUSTODIAL IS SELF-EMPLOYED: Tennessee judges can require the non-custodial parent to post a bond to ensure payment. (Click here to read TCA 36-5-501, the statute involved, the specific language at 36-5-501(b).)

NON-CUSTODIAL NOT PROVIDING COURT-ORDERED HEALTH INSURANCE: Petition for Contempt and ask for a Qualified Medical Child Support Order (QMSCO) allowing you to deal directly with the insurance company after the other parent is paying for the insurance.

NON-CUSTODIAL OWES BACK SUPPORT:

a. File an Internal Revenue Service intercept to get any federal income tax due the non-custodial parent -- do this at the IV-D child support agency. This must be done by June 30th for that particular tax year.
b. Pursue a judgment on back support and ask the court to order payment on the back support through wage withholding.
c. If the arrearage is more than $750, ask the IV-D child support agency for IRS Full Collection services to have the IRS assist in collecting your back support just like back taxes.

NON-CUSTODIAL OWES BOTH ALIMONY AND CHILD SUPPORT: Enforcement options for alimony are about the same as the options on delinquent child support.

NON-CUSTODIAL ALSO OWES WELFARE DEPARTMENT BACK CHILD SUPPORT: So long as you're on AFDC, you and the state welfare department will split the back child support payments when they're paid, but you will get part of it. The welfare department can only take part of your current child support payments if you are drawing AFDC benefits. The state is not entitled to more money in back support than they gave you in AFDC benefits.

NON-CUSTODIAL LOCATION UNKNOWN: Your IV-D child support agency can do a State Parent Locator, checking state department of taxation, social security, bureau of employment, etc., if you know the state where the other parent lives. If you don't know the state the other parent lives in, the IV-D child support agency can run a Federal Parent Locator, checking records through the IRS, the Social Security Administration, Department of Labor, etc., for all 50 states.

NON-CUSTODIAL PUTS ASSETS IN SOMEONE ELSE'S NAME: If you can prove the non-custodial parent intentionally hid or transferred assets to avoid allowing you to collect child support, and that they they failed to pay support, the court will likely jail them for contempt and you can collect against those assets as being "fraudulent transfers", even if there might be another person's name on the car title or bank account or property deed.

What About Really Old Back Child SUpport?
Before discussing the options, remember that even if you decided not to pursue back child support at one point, you can always change your mind later, for the full amount that has not been paid. Under Tennessee law there is no statue of limitations for child support, meaning even 30 years after the parent owed the child support can take the other parent to court to collect it. (Click here for the statute, TCA 36-2-321.)

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