ENFORCING A CHILD SUPPORT ORDER (OR SPOUSAL SUPPORT ORDER) WITH A CONTEMPT ACTION
When a parent or former spouse fails to comply with a child support order or spousal support order, there are many child support and spousal support enforcement remedies available under the California Family Code. Perhaps one of the most effective remedies is filing an Order to Show Cause for contempt against the child support or spousal support obligor.
There is a difference between a criminal contempt action and a civil contempt action. Criminal contempt actions may only be brought by the Deputy District Attorney pursuant to Section 166 of the Penal Code. On the other hand, civil contempt actions may be brought by the support obligee (or the obligee's attorney) pursuant to Section 1209.5 of the Code of Civil Procedure. Although either type of contempt action may result in the obligor's incarceration, there are several differences between the two.
While criminal contempt actions are intended primarily to punish, civil contempt actions are intended to compel payment of support. Perhaps the most important difference between a criminal and civil contempt action is the burden of proof. Under a civil contempt action, the obligee need only prove there was a valid child support or spousal support order, that the obligor knew about it, and failed to pay. The obligor must then raise an affirmative defense, the most common of which is that his failure to pay was not willful, but rather because he was unable to pay. Under a criminal contempt action, the Deputy DA must prove ability to pay (which is presumed under a civil contempt action).
Under a civil contempt action, the obligor may "purge" the contempt counts by paying what he was ordered to pay (but failed to pay) over the past 36 months. Although the child support or spousal support obligor may be sentenced to 5 days in jail for each month he failed to pay as ordered, he "holds the keys to the jailhouse door" because he can avoid incarceration by simply paying what he should have paid under the court order over the past 36 months, but failed to pay. Under a criminal contempt, the obligor may serve time in jail regardless of whether he pays or not.
A civil contempt action can be complicated because there are constitutional rights at issue. Although the burden of proof for in a civil contempt action is easier than a criminal contempt action, they can still be very tricky. Remember, a contempt action requires a full trial (unlike other matters which may be disposed of with a hearing or long-cause hearing). As a support obligee, you should not expect to litigate your own contempt action. You must hire a good attorney with experience litigating civil contempt actions.
DURATION OF A CHILD SUPPORT ORDER.
The duration of a child support order is generally set by statute. However, the court may change the duration of a child support order, as necessary and legally warranted. Pursuant to the California Family Code, child support must continue until the child is 18 years of age, but must continue up to 19 years of age if the child is continuously enrolled full-time in high school, and not self supporting. Fam.C. Section 3901(a). However, the child does NOT have to show a good faith effort to graduate from high school as soon as possible for the child support order to continue. IRMO Hubner (2001).
Child support orders do survive the death of the noncustodial parent. The child support order becomes chargeable against the obligor's estate. IRMO Gregory (1991).
Pursuant to Fam.C. Section 7120, a child may petition the court for emancipation. A judicial determination of emancipation, which means that the child is now self-supporting, will terminate the child support order.
If the child is disabled, support may continue indefinitely. However, the disability must be specifically and clearly substantiated by declaration and/or testimony (often by a qualified professional). Fam.C. 3910
DURATION OF A SPOUSAL SUPPORT ORDER.
The length of a spousal support order (also known as alimony) often varies. Depending on the length of the marriage, a spousal support order may continue for the life of the spousal support obligee. Generally, a spousal support order will continue until either party dies, or the support obligee remarries (or cohabitates).
INTEREST ON CHILD SUPPORT ARREARAGES.
Each missed payment of child support and spousal support is a judgment by operation of law. Accordingly, a judicial determination of arrearages is not required in order for interest to begin accruing. Interest begins to accrue on the day each payment was due, but not paid. Under California law, interest accrues on all child support and spousal support arrearages at the rate of 10% per year.
WITHHOLDING SOCIAL SECURITY INCOME TO COLLECT CHILD SUPPORT.
Yes. The basic rule is that need-based income cannot be garnished to collect child support. Examples of need-based income would be Temporary Aid for Needy Families ( TANF), Supplemental Security Income (SSI), or income from the State Supplemental Program (SSP). However, Social Security Income (SSI), whether retirement or disability income, may be considered when calculating a child support order, and may be garnished to collect current child support and/or child support arrearages.
WITHHOLDING LIMITS FOR CHILD SUPPORT.
In California, the withholding limits for child support are an exact mirror of the Federal Consumer Credit Protection Act Withholding Limits. (See CCP 706.50 and CCPA for state and federal statutes).
If the child support obligor actively supports a spouse or dependent child in his own home, and the child support arrearages are less than 12 weeks old, the withholding limit is 50% of earnings.
If the child support obligor actively supports a spouse or dependent child in his own home, and the child support arrearages are more than 12 weeks old, the withholding limit is 55% of earnings.
If the child support obligor does NOT actively support a spouse or dependent child in his own home, and the child support arrearages are less than 12 weeks old, the withholding limit is 60% of earnings.
If the child support obligor does NOT actively support a spouse or dependent child in his own home, and the child support arrearages are more than 12 weeks old, the withholding limit is 65% of earnings.
Other withholding restrictions may apply, depending on the source of earnings.
GUIDELINE CHILD SUPPORT ORDER.
California (and many other states), have a formula which is required to calculate the amount of a child support order. The formula is complicated. It is actually an algebraic formula. (See Fam.C. Section 4055 et. sec.). Because the formula is complicated, software programs have been developed to make it relatively easy to calculate child support orders. The most popular two programs, both of which are approved by the California courts, are the X-Spouse and Dissomaster programs.
Sometimes the parties and/or the court may depart from the guideline formula, depending on the circumstances. However, before departing from a guideline child support order, the guideline amount must first be determined and disclosed to all parties. Additionally, it must be determined that departing from the guideline support order is somehow in the best interest of the child. (See Fam.C. 4056 for other requirements).
It is a threshold requirement to modify a support order that the movant prove there has been a material change of circumstances since the child support order was entered. However, a non-guideline child support order may be modified at any time.
More coming soon....
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