Child support is a frequent cause for tension between divorcees. Whenever money is involved, divorce cases become more hostile and difficult to mediate. Whether it be late payments, or even outright refusal to pay, disputes over child support payments are a common reason for divorcing couples to argue. Failure to pay child support, however, is more than a simple civil dispute between two hostile parties – it is a criminal violation.
The Legal Side of Child Support
According to the United States Code, failure to pay child support is a criminal offense if done willfully, adds up to a year of payments or $5,000, or if it violates a court order. Violation of this law is a misdemeanor, carrying with it the punishment of fines and up to six months of prison time. While this is a federal crime, enforcement is at the state level and only gets to the federal level of enforcement in cases involving crossing state lines or when state enforcement is already in effect.
If a divorced party files a complaint against his or her ex-spouse, a judge will decide the case during a hearing. Before criminal prosecution begins, the non-paying party must attend the hearing and provide an explanation for why he or she has failed to pay. The non-paying party must also explain why he or she did not request a modification hearing. Most often, the defendant must show evidence, including witness testimony. Contact with the previous employer, as well as contact with any job applications can be proof of unemployment, for instance.
Avoiding a jail sentence in these cases requires a compelling, truthful explanation – as well as expert testimony if, for example, the ex-spouse was incapable of working and doctors were treating him or her for a condition during the time. Typically, the outcome of these hearings is unlikely to be outright prison sentences – as this would diminish the ability to pay future child support. Instead, it is more common for judges to order wage garnishments or repayment schedules.
The main factors a court considers before deciding on incarceration are:
- Amount due – larger sums are more likely to result in a jail sentence.
- Reasons given for non-payment.
- Employment status of the offending parent.
Ultimately, it is rare for courts to jail parents for not paying child support. Courts take the view that parents should jointly raise children, even if they are divorced. Only in extreme circumstances, particularly when payment is unlikely, will a prison sentence be issued.
What to Do If an Ex-Spouse Won’t Pay
The first step is always to reiterate your demands for financial compensation. While it is entirely possible for the other party to ignore your requests, it is important to complete this step first. Following a failed attempt to collect a debt, it is worth contacting an attorney to represent your case and advise further steps.
If your lawyer believes it necessary, only then will you file a hearing request against your ex. In these circumstances, you may need to request that the court hold your ex in contempt of court. Regardless, the most likely outcome is that the court will set up wage garnishment or place arrears on your ex to acquire the funds, should he or she prove reluctant or unable to make immediate or scheduled payments.
It is not generally desirable for a parent to serve jail time for not paying child support. Aside from parenting concerns, this also limits his or her ability to earn money to pay the accrued debt. It is preferable to reach an agreement or, barring that, to establish a court-ordered garnishment or payment schedule to enforce future payments.