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#516 Failure to meet child support/spousal support obligations

mp3 #516 What to do if Child or Spousal Support is Not Being Paid? (mp3 file)

Family Law matters are very complex. Many who try to handle these matters on their own quickly find themselves overwhelmed and out of favor with the courts. Often times costs are cited as the reason for self representation. However, most people with assets and retirement plans stand to lose significant amounts of money, or worse, lose custody of their children if they are not properly represented. Continue here to be referred to an experienced and insured Family Law attorney:

If your former spouse has fallen behind either in spousal support payments or in child support payments, there are several legal steps you may take to enforce your rights to those payments which the court has awarded you. The simplest first step is to contact the county district attorney's office, family support division in the county where you live. The family support division will assist you without charge. Later in this message, its services will be described in detail.

Or you may contact a private attorney, and take the same kind of legal action any creditor would take against someone who owes him money: you may apply to the court for what is called a "writ of execution" against your former spouse. This means that the amount of support your spouse owes you can be taken by an officer, such as a sheriff or a marshal, from your former spouse's wages or from other property--that is, real estate or any personal property your former spouse owns. The officer can also take this money owed to you from bank accounts belonging to your former spouse. About half of your former spouse's wages can be taken each pay period, if the officer is informed where he or she is working. State and federal law provides that no person can be terminated from his employment because of garnishment of wages but sometimes an employer may fire a worker for other reasons when garnishment of wages occurs.

Another action you may take is called an "order to show cause" to have your spouse held in contempt of court for non-payment of support. This is a proceeding through the court which can result in your spouse's being ordered to pay support which he or she owed within a certain period of time or face the possibility of being sent to jail.

For your former spouse to be found in contempt of court, you must show that your ex-spouse had knowledge of the support order, had the ability to pay something, and willfully refused to pay. Both of these steps, the writ of execution and the order to show cause, usually require the help of an attorney. Generally you will have to pay for your own attorney's fees and expenses, although sometimes the court may order your former spouse to pay all or part of these costs.

Another remedy which is available is called a wage and earnings assignment order. For all support orders made on or after July 1, 1990, the court will, with few exceptions, order an income assignment, by which a portion of the other parent's income will be deducted by his employer or others who pay money to the obligated parent and sent directly to the parent who is supposed to receive the child support. If your order was made before July 1, 1990 this procedure requires you to make a request to the court. The court will order a wage and earnings assignment order, unless the other parent has a history of 12 months of full and timely payment, or he posts a bond, or the income assignment would cause extraordinary hardship to the other parent. In some cases the assignment may be sent to an employer in another state.

In all proceedings, you have to be able to declare, under oath, exactly what amount of money that your former spouse has paid to you, and the exact amount of payments that are behind, so keep accurate records of all support payments. You'll need this information, if you want to obtain the overdue support payments which are owed to you. You will also need a copy of your court order. You are also entitled to interest on all unpaid support, generally this is ten percent simple interest for all unpaid support from January 1, 1983.

If your former spouse has moved out of California, the uniform reciprocal enforcement support law, called the U.R.E.S.A. Gives you the right to take action through the district attorney in your own county. The district attorney or county prosecutor where your former spouse is now living will then prosecute your case at no expense to you.

Non-support of a child is a crime. If the family support division of the district attorney's office decides that your spouse's conduct is criminal, then it may file a criminal complaint, which may result in your spouse's conviction, and the threat of a jail term if minimum standards for child support are not met. The district attorney may decide to issue a writ of execution or a show cause order on your behalf. The district attorney may also take the same action a private attorney would, but at no cost to you.

The family or child support division of your county district attorney's office provides the following services without fee to all custodial parents, whether they receive public assistance: location of parents; establishment of child support and medical and medical support orders; establishment of paternity orders; and enforcement of support orders. The district attorney is also authorized to enforce spousal support, when it is joined with a current order for child support. The district attorney family support office provides service on behalf of the state of California. They do not represent you and are not your attorney. Because you are not their client the information you provide is not confidential under the attorney/client privilege.

If you are applying for or receiving public assistance, you must assign your support rights to the county to be eligible for aid to families with dependent children (known as Cal Works). Assigning your support rights means that you turn over to the county your right to collect child and/or spousal support. The county will apply all past and present child and spousal support payments collected to repay the Cal Works grants which were paid to you. The county will keep no more than what has been paid to you in Cal Works assistance. If you are not applying for or receiving welfare assistance, no assignment is made. If you discontinue Cal Works assistance, each current month of support will be paid to you before repayment of county assigned support.

Information received and maintained by the district attorney's office is confidential under the law.

When your county district attorney's office is enforcing a child support order, various techniques are used to collect the support owed. They include: garnishments, writs of execution, wage assignments, liens, contempt actions and criminal prosecution. When the absent parent resides in another state, requests are made to that state to institute similar collection efforts. The district attorney's office may use one or more of these techniques to collect any support due. In addition, income tax refunds, both federal and state, can be intercepted, as well as California state lottery winnings and up to 25% of unemployment insurance and state disability benefits.

Health insurance coverage for the supported children must be maintained by either or both parents, if that insurance is available at no cost or at reasonable cost to the parent or parents. If you want medical support enforcement services and you do not receive Cal Works or Medi-Cal, ask the district attorney's office to establish and/or maintain such orders. If you are receiving Cal Works or Medi-Cal, the district attorney's office will ensure that an appropriate medical order is made, and will enforce maintenance of that coverage.

If the absent parent lives in another state, a court action will be initiated in your county, and forwarded through the other state's central registry to the child support authority where the absent parent lives. That office will then bring the absent parent before that local court to request a child support order the court in the other state has the authority to set the amount of the order. Some foreign countries will also respond to requests for support enforcement.

Be sure to contact the family or child support division, of your county's district attorney's office, if you need any of its free services.

Remember that the non-custodial parent does not "buy" visitation rights, and non-payment of support does not cancel those rights. Neither does denial of visitation relieve the obligation to support. These tactics use children for parents’ own purposes, and are not permitted by the courts. The remedies available to you are, again, garnishment of property or salary, contempt of court, assignment of income or earnings, and criminal action.

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