In divorce and paternity cases, one parent is often ordered to pay child support to the other. While child support formulas can vary by state, child support calculations typically involve the court look at varying factors. Factors can include the parties’ income, the cost of health care, daycare, extracurricular and educational expenses, and the visitation schedule.
When a court orders a child support amount, courts assume the parent will make all their child support payments. Paying child support is not optional once a court has ordered it.
If a party fails to pay child support, bad things can happen. A court can hold the party in contempt of court. If held in contempt of court, they can be ordered to not only pay the amount due and owed, but they can be ordered to pay attorneys fees. They can even serve jail time until they purge themselves of the contempt.
In other cases, a court can charge a party with misdemeanor or felony non-support. When a party faces criminal charges for failing the pay child support, the situation could not be more serious.
What should a party do if they cannot pay their child support?
While parties should always abide by court orders and pay their child support, there are times when an individual may be facing financial hardship where they feel it is impossible to comply. It could be a situation where the payer parent has lost their job. The loss of a job may make it impossible to pay.
In these circumstances, it is vital that the payer parent file a motion to modify with the court to lower their child support obligation. Obviously, the exact protocols can vary based on the state and the circumstances of the case.
It is always problematic when a party does not pay their child support, and does not file a motion to modify with the court. In these circumstances, contempt or criminal proceedings can commence.
The standard on a motion to modify
Not paying child support can result in a party being held in contempt of court or being criminally prosecuted. Thus, not taking any action is normally not an option. A motion to modify is almost always the first step.
However, to prevail on a motion to modify, a party generally has to show that the change in their income is of a substantial and continuing basis. Making this showing might require a party to make meaningful attempts to obtain gainful employment.
To show attempts at obtaining gainful employment, a party who wishes to lower their child support may need to show the court the jobs they have attempted to obtain. It might mean delineating job interviews they have undertaken in order to pay their child support. A vocational expert might be useful if their job field is currently not hiring.
Paying something is almost always better than paying nothing
To avoid being held in contempt or criminally prosecuted, always pay something rather than nothing. In other words, if a party is court-ordered to pay X amount, and they cannot afford to pay, it is always better to pay something that they can afford.
Even if a party is sending in what seems like a fairly nominal amount, paying something they can afford shows good faith. On the other hand, paying no child support over a period of months can cause a party lots of legal problems.
In certain situations, some might even have their rights terminated if they pay no child support whatsoever. The laws in states can vary, but paying nothing could rise to the level of abandonment in certain circumstances.