This is one of the most frequently asked questions that people need help answering. Even though you may have already gone to court, either in a divorce action or as part of a Family Court petition, and you were awarded child support, you may still have to go back to court to get your child support order enforced. Unfortunately, as frustrating and time-consuming as this sounds, especially if you need the additional money to help support your child(ren), it really is the only way to compel the other parent to comply with their obligation.
Terms to Understand
- Payor
The person who has been ordered to pay child support.
- Payee
The person who has been ordered to receive child support.
- Violation Petition (Enforcement Petition)
The document that the payee must file in either the local Family Court or Supreme Court to request a hearing where it will be determined if there was a violation of the Child Support Order, what penalties may be imposed on the payor and what relief will be given to the payee.
The Presumption of Willfulness
The good news is that the law is favorable to the payee who has a valid Child Support Order. In fact, New York law presumes that the payor’s failure to pay child support, in violation of an Order, is “willful.” To establish willfulness, the payee must only submit sworn testimony showing that they did not receive the required payments from the payor. Once this occurs, the law shifts the burden to the payor who must demonstrate their inability to make the required payments. This is not a simple process. The payor must provide the court credible evidence in support of their inability to pay.
Getting a Money Judgment
If successful, the payee will be awarded a money judgment. The money judgment will list the amount of the unpaid child support awarded to the payee (these are called “arrears”).
If the payor does not pay the judgment, then the court can take action against the payor and order penalties which include:
- Take away the payor’s business or professional licenses.
- Suspend any recreational licenses (hunting and fishing).
- Require the payor to pay the support in advance before the payments are due.
- Jail the payor for up to 6 months.
- Put the payor on probation in accordance with the criminal procedure law.
- Order the payor to pay the payee’s attorneys fees.
- Add interest to the amount of money judgment.
- Order the payor to join a rehabilitation program for work preparation, alcohol or substance abuse, or education.
If the payee is receiving child support through the Support Collection Unit (“SCU”) they can:
- Garnish the payor’s wages (called an income execution.
- Have the government send them his state or federal income tax refund, or a portion of his unemployment benefits.
- Suspend the payor’s driver’s license.
- Take money from his bank accounts and retirement accounts.
- Put liens on his property.
- Report his late support payments to credit agencies
The bottom line is that once the payee has a Child Support Order, the courts can and will help collect the money owed. However, it is a time-consuming process which might be the source of frustration. Despite this, it is important that payees not give up because child support is meant to help them raise and support their child(ren).
Stephen J. Riebling, Jr. is a Family Law attorney and partner with Riebling & Payton, PLLC, located in Westchester County, NY and has been practicing for nearly 25 years. To learn more about Mr. Riebling and the firm, visit Riebling & Payton, PLLC at www.RieblingPaytonLaw.com.