The Lengths to Which Courts can Go to Collect Child Support Payments

The court system can go to great lengths to collect overdue child support payments. These are some of the ways that courts can take money from you and apply it to child support if you do not pay:

• Garnishing wages
• Seeking bank accounts
• Selling assets from your estate (even death cannot get you out of the obligation to pay child support)
• Additionally, the court can impose the following non-financial punishments for failure to pay child support:
• Contempt of court
• Suspension of driver’s license
• Suspension of passport

The Courts Generally Treat Child Support and Visitation as Unrelated

If you do not keep up with child support payments, the court can interfere greatly in your finances and in other aspects of your life, such as your right to drive and travel. What it cannot do is take away your right to spend time with your children. Parenting plans deal with every aspect of raising children after divorce except financial ones. For example, they specify which days, including which holidays, the children spend with each parent, and they specify which parent has the right to make certain decisions regarding the children’s education and health. The idea is that money comes and goes, but parent-child relationships are forever. Besides, the courts generally hold that it is in the best interest of the children to spend a substantial amount of time with both parents, regardless of financial circumstances. Conversely, having little or no visitation time with the children, even being estranged from them completely, does not erase child support obligations.

Contact Alan Burton About Enforcement of Child Support Orders

It can be frustrating if your former spouse does not make the child support payments that the court ordered as part of your divorce. Contact Alan R. Burton in Boca Raton, Florida to help get the child support money that is owed to you.

Statutes that were designed to protect the family assets from creditor claims, so that the family would not become dependent upon the state for support, do not afford an individual the same protection against their ex-spouse for the payment of child support or alimony arrears.

In order for a spouse to reach funds held in a retirement account, whether it be an IRA or a 401(k), there must first be an existing support order.  Next, there must be a finding by the court that there are in fact arrears owed pursuant to that court order which have accrued as a result of nonpayment by the obligor.  If the court makes an affirmative finding that the obligor has willfully refused to pay support obligations, he or she may be found in contempt of court.

Once an individual is found in contempt of court, the court will then decide the total amount of the arrears, and the rate at which those arrears will be repaid.  The court does have the right to look to funds that are held in an IRA or a 401(k) to pay the arrears.

These were the precise set of facts that existed in the case of Siegel v. Siegel.  Mr. Siegel owed a substantial amount of support obligations to his ex-wife.  Although Mr. Siegel was employed, he continued to deposit funds into a retirement account.  The court, in their opinion, stated that you don’t have the right to “hoard your assets” and put the funds in a retirement account, and avoid paying your support obligations.

The Siegel case stands for the proposition that once you are held in contempt for nonpayment of support obligations, funds and retirement accounts can be obtained as a source to satisfy any existing arrears. The funds are not protected in the same way they would be from third-party creditors, such as credit card companies medical bills, or financial claims from parties other than an ex-spouse.

In another case from the Tampa area, Wix v Wix, Mr. Wix successfully argued in the trial court that he did not have the ability to pay his full alimony obligations.  His financial affidavit reflected a deficit each month, after paying a portion of his alimony payment.  He did have money set aside in his 401(k) account.

This decision was reversed when the former wife, unhappy with the trial court’s ruling, filed an appeal. On appeal the appellate court said that any funds in a retirement account, including a 401(k) or an IRA can be applied towards the payment of outstanding alimony or child support arrears, whether or not there is an existing order of contempt.

The Wix case is a little bit different than the Siegel case.  In the Siegel case, there was initial finding of contempt, which established the amount of support obligations that were owed.  The court stated that those funds could be used to satisfy the finding of contempt by the court.

The Wix case stands for the proposition that there need not be an initial finding of contempt.  Funds in retirement accounts can be used to satisfy support arrears regardless of whether or not there was a pre-existing finding of contempt.

So what does all this mean?  Simply stated, funds that are normally protected from bill collectors and other critors like credit card companies are not afforded the same protection in Family Court under Chapter 61 proceedings.

Chapter 61 is the statute that governs dissolution of marriage actions in the State of Florida.

There is a lot at stake when you are dealing with support obligations, contempt, and funds in retirement accounts. Call Attorney Alan R. Burton, a divorce attorney in Boca Raton, Florida who has years of experience dealing with support obligations in divorce cases.  Call him today for a free consultation at 954-295-9222.

What in the world does this mean “clean hands”?   “Clean hands” simply means that you must act in good faith when you appear in court.  You cannot expect to be rewarded for bad behavior when you appear in court.  You must act in good faith, “have your house in order”, and be candid and honest with the Court.  This is what “clean hands” means.

The clean hands doctrine frequently arises in supplemental petitions for modification of alimony or child support.  A party may be seeking to reduce the previously ordered obligation for support, based upon a change in their financial circumstances.  Often times these individuals will have a large, accrued balance, of either child support or alimony arrears.  If you fall into this category and proceed to court seeking relief,  you better have a good explanation as to why you have not been paying the previously ordered amounts for either alimony or child support.

Unless you can explain that you simply did not have the ability to pay the previously ordered support obligations, your supplemental petition for downward modification will in all probability be denied.

When you are seeking to reduce your support obligations, you must also allege in your petition that your inability to pay the amounts which were previously ordered was not intentional, but simply beyond your financial means.  If you fail to allege this, your petition seeking relief will most likely not be granted.

The representation that you make to the court in your pleadings, regarding your inability to pay, is an example of you having “clean hands”, rather than you simply disobeying a court order.

Another way of stating this doctrine, is that if you are seeking equity or fairness from the court, you yourself must be doing equity and act in a fair and reasonable manner.

There are hundreds and hundreds of cases that talk about the equitable doctrine of “unclean hands”, which can be utilized as a defense when the other party seeks a reduction in his or her support obligations.

One example of this principle is found in the case of Jenkins v. Jenkins.  Mr. Jenkins owed over $24,000 in child support payments.  He filed a supplemental petition to reduce his child support payments claiming that he did not have the financial ability to continue to pay the court ordered obligation.  He was successful with his case at trial, however, on appeal, he was not as fortunate.  The appellate court reversed his good fortune, simply because he did not allege nor prove that the failure to pay the previous amounts of child support were not willful and intentional.

If you have an arrears, it does not automatically mean that you can’t get a future, prospective reduction from your support obligation.  It simply means that you need to be prepared to show that you were financially incapable of complying with the previous child support order.  For a good discussion of these various concepts, you can read the case of Blender v. Blender.

A continuing default in court ordered obligations simply does not bode well when you come to court asking for financial relief.  This would be especially true if you are gainfully employed throughout the period of time that you are either not making any support payments, or not making the full amount of court ordered support obligations.  In Feder v. Feder, the former husband ran into the same difficulties that Mr. Jenkins ran into.  Mr. Feder was unable to prove that he lacked the financial ability to comply with previous court orders, and therefore his supplemental petition for downward modification of support, originally granted at the trial court level, was ultimately reversed on appeal.

Filing a supplemental petition for downward modification of support must contain the proper language, demonstrating good faith, if you expect to receive favorable treatment by the court.  Contact Alan R. Burton, an experienced attorney who practices primarily in Palm Beach County and Broward County. Florida, who can appropriately and professionally represent you, either in the pursuit of your petition for modification, or in defending you in a modification proceeding.  Mr. Burton can be reached at 954-295-9222.  He stands by ready to take your call.

If an income deduction order or income withholding order has been entered, Florida Statute 61.1301(1)(b)(2) mandates that any arrears must be repaid at least at the rate of 20% of the regular monthly support obligation. This is a nonnegotiable amount that cannot be repaid at less than the 20% rate based upon the statutory mandate.

The situation is a little bit different when there is no previously existing income withholding order.  The court has more discretion to dictate the terms at which arrears will be repaid to the recipient.  Case law has made it clear that in situations where income deduction or income withholding orders are not at issue or in play in the case, the trial court would have discretion to provide a different rate of payment on existing arrears.

In Burdick v. Burdick, 601 So.2d 632 (Fla. 4th DCA 1992), the appellate court held that “a trial judge generally has discretion to order arrearage payments in installments or to otherwise structure the manner of payment”.   In another case, Ashe v. Ashe, 509 So.2d 1146 (Fla. 1st DCA 1987), the court ruled that a trial judge can schedule monthly payments consistent with the payor’s ability to pay when determining the amount and terms of alimony or child support arrears payments.

It is pretty clear however, that if the income withholding order was initially issued in a case, with the intent to have support payments paid from wages, then any subsequent arrears payments would be paid at the rate of 20%, and the court has no discretion to deviate from that amount.

The longer you go without collecting monthly support, the larger the arrears becomes, and the larger the arrears, the more difficult it becomes to collect.  Call Attorney Alan R Burton at 954-295-9222, located in Boca Raton, Palm Beach County, Florida to enforce your rights and collect support arrearages that are owed.

Paying child support in a timely fashion is important; not only is it important to the well being of your children, it is also important to your continuing freedom.

Although the Florida Constitution prohibits one from being imprisoned for a debt, the constitution will not protect you from being imprisoned as a result of non payment of your child support.

Although the Florida Constitution does provide safeguards for unlawful imprisonmement, if it is determined that the refusal to pay is willful, you most likely will be incarcerated for a period of time until something towards the child support arrears has been paid.

The local and national news is full of stories that deal with amnesty programs and other plans which are designed for and to encourage delinquent obligors to come forward with their child support payments.

However, these programs should not be considered as weakness or being lax on the part of the state enforcement divisions for the collection of child support. For example, Waynesboro, N.C. man was recently “brought down” by police tasers as he attempted to flee from police on a felony warrant for non-payment of child support. He is currently being held with no bond.

Some people will employ any means possible to avoid their child support obligations. Outside of Atlanta, a former government employee had his paychecks altered in order to avoid showing an increase in his income, which would ultimately lead to paying a smaller amount of child support.

This indiscretion on his part has ultimately landed him with a felony indictment for forgery, a first degree felony. Read the complete story about Freddie Ashmon, Jr.

The easiest way to not run afoul with the law is to pay your child support.

A modification of child support, or alimony as well, is based upon an unforseen, involuntary, permanent and substantial change in circumstances. Florida statute 61.14 provides the statutory basis for a modification of child support and alimony.

If the court, after entertaining a petition for modification of support, either upward or downward, finds that there was a change in circumstances, or the financial position of either party has changed, the court can enter an order, retroactive to the date of filing the petition, granting the modification.

Often times it takes a considerable amount of time to have a matter scheduled for hearing before the court. The length of time varies between the particular judge and the courthouse in which the petition is pending.

This is the rational behind the rule that petitions , if granted, are retroactive back to the date of filing. There is one important exception to this rule. If a parent seeks an upward modification of child support when the obligor is not exercising the agreed upon time sharing, the modification of that particular support obligation is retroactive to the date when the obligor first stopped adhering to the agreed upon time sharing schedule.

Terrell Owens, a well known player in the NFL, was recently seeking a reduction of his child support obligations. His claim was based upon his current state of financial affairs. His efforts to reduce his support obligations would most likely have been successful, but for the fact that he most recently signed a new contract with the Seattle Seahawks for a reported sum of $1,000,000.00.

The case of Terrell Owens illustrates the point well. In order to obtain financial relief, there must be a certain degree of permanency in the change of one’s financial picture, not merely a temporary one.

If you have circumstances that you believe would warrant either an increase or decrease in your support obligations, you can call the law office of Alan R. Burton anytime. With over thirty years of experience in family law matters, Mr. Burton is well qualified to assist you with your questions. He maintains offices in Boca Raton and Fort Lauderdale, Florida. Feel free to call him today. He will be available to discuss your case.

The payment and collection of child support in Florida as well as around the country is not always an easy process. Its surprising to see all the stories in the media today, which deal with individuals in the “public eye” who are not paying their child support.

For example, the gold medal champion, Gabby Douglas, made a recent announcement at the Olympics, that her father was a “deadbeat dad”,who neglected his responsibilities. This story was recently reported in the New York Post.

This is just one of the many stories I have come across this week, all of which deal with either celebrities or prominent sports figures who, for one reason or another, seem intent on neglecting their most important resources…their children.

Former NFL star Warren Sapp reportedly filed bankruptcy recently, where it was disclosed by Mail Online that he owed substantial child support to four different women.

We are all familiar with the Michael Jackson story, but are not as familiar with all of the collateral stories, until now. Randy Jackson is embroiled in litigation with his family over the Michael Jackson estate. It may not be a coincident that he allegedly owes over $500,000.00 in back child support.

These figures obviously represent the accumulation of child support arrears, over an extended period of time. If you are the recipient of child support, the lesson to be learned here is to act fast. Don’t sit back waiting for a miracle……be proactive, and “nip the problem in the bud” before it becomes an impossible situation to ever rectify.

As an attorney with an active divorce practice in Boca Raton, Florida, and all surrounding areas, including Delray Beach, Boynton Beach, and Fort Lauderdale, with over thirty years of experience, I can implement a strategy for collecting child support payments which are due and collecting child support arrears.

Don’t let this problem escalate to astronomical numbers and act today!

Every state has “Child Support Guidelines in place, and Florida is not excluded. Florida Statute 61.30 deals with the support of minor children, and includes the child support guidelines adopted by the Florida legislature.

A compilation of various statistics regarding child support was recently reported in an article found at Ebony.com. As an example, the story indicates that child support is paid primarily by men, 85% to be precise. This is indicative of the mother generally being responsible for raising the children.

There are a host of penalties that one could suffer by not paying child support, including wage garnishments, seizures of property, loss of driving privileges, and jail time.

Take a moment to check out the article, with its other statistical information. It i informative.

Is anyone exempt from paying child support? The answer is clearly NO. Each parent has a responsibility to support their children, not just one parent.

This is even true if one parent is wealthy, and the other parent is down and out. Remember the television show, Jon & Kate plus 8? This situation exemplifies the example that both parents owe a duty of support.

In a recent news story published in “RealityTea” about child support, Jon Gosselin confessed that he was having difficulty sustaining himself, let alone all of his children.

Keep following this story. Mr. Gosselin will soon learn that regardless of the fact that his ex-wife has money or not, he has a responsibility to his children as well. Remember, “it takes two to tango.

Prior to the imposition of penalties for non payment of child support, the court must conduct an evidentiary hearing, and provide the non paying parent with an opportunity to explain why the support is not being paid. If the court determines that the non payment has in fact been willful, the parent will be found in contempt, and the next step for the court to consider becomes the penalties to be imposed.

If a determination is made by the court that the non paying parent has either cash or other assets available to pay towards the support owed, that then becomes the “purge payment”. The purge payment is the amount necessary to be released from jail, if the judge determines that is the appropriate sanction.

Loss of driving privileges is also possible, until such time as child support becomes current.

An experienced divorce lawyer, who frequently deals with child support, can work with you on these most important issues. It is often times best to deal with non payment of child support issues early on as these matters tend to “snowball” rapidly.

Florida Statute 61.30 governs the provisions and amounts of child support to be paid, based upon the combined earnings of the parents.

The most effective remedy for the collection of child support is to invoke the contempt powers of the court. What exactly do we mean by invoking this process in the court system?

Initially there must be a court order which directs the obligor to pay a certain amount of child support, usually on a monthly basis. If the support payments become delinquent, the recipient has the right to bring the obligor (payor) before the judge, and to seek incarceration.

Having someone put in jail for non payment of support is not the easiest thing to do. First, the recipient of the child support, or alimony, must first prove to the court that the payor had the present ability to pay the court ordered support, and that the payor willfully refused to pay his child support or alimony.

Once this step is proven, you then need to demonstrate to the court that the person responsible for the payment of child support or alimony has the ability to either pay the full amount of the delinquency or a portion thereof. Once that amount has been established, it becomes the “purge” payment, and the payor can be sent off to jail until he pays the purge amount.

More often than not, the judge will usually give the payor a few days or up to a week to pay the purge amount, and if it isn’t paid within the required time, then jail would be appropriate.

The payor would remain in jail until such time as the purge is paid.

A simple straightforward analysis of this process is found in the case of Ramirez v. Ramirez, 4D11-3818 (April 4, 2012).

In other words, if an increase in child support may be appropriate, at what point in time does that increase become effective? Is the increase effective as of the date the circumstances arose, which entitles the recipient to receive more support, or does the increase start from the date of the award by the judge, or some other date? If you , as the payor, are seeking a reduction in the payment of child support, what date does that reduction occur?

The answer to that question was clearly provided for in the case of Webber v. Webber, 56 So3d 822 (Fla. 5th DCA 2011). The court in the Webber case made it clear that any modification of child support cannot be imposed on an individual prior to the date that a petition for modification is filed.

The moral of the story is that if you believe that you are entitled to either an increase in child support, or a decrease, don’t wait to file. If you delay in filing, you will lose out on the benefits that you are seeking.

Trying to keep current on support obligations is no easy task, but the ramifications of not keeping up can be significant. Delinquencies can subject one to the loss of a driver’s license, professional license, or even the loss of their freedom, if the non payment is intentional and willful.

South Florida, Boca Raton, Fort Lauderdale are all areas in South Florida that feel the impact of the economy on the payment of child support. The Department of Revenue, the agency responsible for the collection of support, witnesses first hand the difficulties experienced by many in collecting child support in a difficult economy. A recent story appeared in the Sebring, Florida area that dealt with this very issue. You can read the story from the Tampa Tribune, and specifically their on line site.

This principal for asserting civil contempt in family law cases was established by the Florida Supreme Court, in the case of Bowen v. Bowen, 471 So.2d 1274, 1278-79 (1985). The Bowen case requires a two step analysis. First, the court must determine if the obligor, who is behind in his payments, has willfully violated the court order for support; and second; the court must determine an appropriate remedy which is to be imposed in order to compel the defaulting individual to comply with the court’s orders.

If the court wishes to incarcerate an individual for willfully failing to pay support, an affirmative finding must first be made to determine what the present ability is to meet a purge condition. A purge is generally a dollar amount that the defaulting party has the “present and current ability” to pay. Once that amount has been determined, the obligor or defaulting party can either pay or go to jail; his or her release will be subject to the payment of the purge established by the court.

Quite frequently, the purge payment represents a very small percentage of the support that is actually owed. It could literally be pennies on the dollar.

A recent case from the 3rd District illustrates the principals involved in jailing an individual for non payment of support. See the case of Aburos v. Aburos, Case No. 3D08-2808, decided on April 21, 2010. The former husband owed $319,828.00 in child support payments. He was found in willful contempt, and was ordered to be taken into custody. The court established a purge amount of $25,000.00, which amount would represent the” key to his cell”. On appeal, the appellate court ruled that it was simply error to establish a “purge amount” when there was no evidence in the record that the former husband had the “current and present ability” to pay the amount as ordered by the court.

The authority of the IRS to intercept tax refunds was established pursuant to Title IV-D of the Social Security Act and the Internal Revenue Code. The program is known as TRIP, or the tax refund intercept program.

The TRIP program is administered by the Florida Department of Revenue in cooperation with the United States Internal Revenue Service (IRS). The authority of the Department of Revenue to act in this capacity is found in Sections 409.2554(1) & 409.2557(1) of the Florida Statutes, (2008).

This does not mean that the TRIP program is absolute, and without safeguards for the taxpayer. A delinquent parent does have rights. A delinquent parent is one who owes at least $500.00 in past due child support. This parent must first be certified by the State of Florida to the Federal Office of Child Support Enforcement. If the intention exists to intercept the taxpayer’s refund, he or she must be given 30 days advance notice in which to challenge the action. The procedure to be followed in challenging the action along with an analysis of the TRIP program can be found in the case of Florida Department of Revenue, Child Support Enforcement, o/b/o Tammy J. Baker v. Harvey Baker, 1st District Case No. 1D09-1929, decided on December 31, 2009.

You may feel that the amount of child support arrears that is owed may be inaccurate, or you believe that there are no arrears or delinquencies. Don’t delay in bringing this to the attention of the court. Get a hearing scheduled and get the matter clarified before year end. It will save you a lot of time and energy by taking a proactive approach with this issue, rather than a reactive one.