Alimony or spousal support is granted to the financially disadvantaged partner when a marriage legally dissolves. Its purpose is to limit the unfair economic effects of a divorce on the non-wage or lower-wage earning spouse or domestic partner by awarding a monthly stipend. This monthly amount is calculated by examining a combination of factors:
• The length of the marriage or partnership
• Each spouse’s needs based on their standard of living during the marriage or relationship
• What each person pays or can pay, including earnings potential, to maintain the standard of living
• The impact of taking a job on the capacity of the primary caregiving parent to care for children
• The age and health of both partners
• Debts and property
• Whether one partner helped the other to obtain an education or professional license, or promote a career
• Whether there was domestic violence in the relationship
• Whether one partner’s career was impacted by taking on childcare obligations or unemployment
• Tax considerations (until January 2019, alimony payments were tax deductible by the paying spouse and receiving spouses had to pay income tax on spousal support payments. Now alimony payments are not tax deductible and receiving spouses do not pay income tax on their benefits.)
Alimony can be ordered for a limited period of time or indefinitely. For marriages or domestic partnerships under ten years of duration, alimony in California is usually awarded for one-half the life of the relationship. For longer tenured marriages, those over ten years, the court retains jurisdiction over what can be an open-ended financial obligation. Alimony continues until the court:
• Changes the terms,
• Ends the obligation, or
• If the support order has an end date.
Alimony in any circumstance will end if the receiving spouse remarries or registers in another domestic partnership, or dies, and if the paying spouse dies. Alimony payments do not survive the death of the obligated spouse or partner.
What Happens When A Former Spouse Or Partner Doesn’t Pay Alimony?
Because alimony is awarded through a court proceeding, the obligated spouse can be ordered by the judge who presided over the divorce or dissolution case to return to court to explain why alimony payments have stopped.
Failure to pay alimony has consequences. First, a 10% interest per year on the balance due is added by law to the arrears. Even the judge cannot stop the imposition of these penalties. In addition, a liquidation amount can be added to any spousal support court order that will include an amount over the monthly support amount until the balance is paid. A court can order a wage garnishment where a percentage of salary is removed and paid directly to the receiving spouse. Also, a court can order funds to be removed from an existing bank account or intercept a tax refund check. The ultimate penalty is incarceration. If the court decides that the obligated spouse or partner has the ability to pay support, but is willfully not paying, the court can hold this person in contempt. The penalty is jail. Although this enforcement tool is not used often, it is used as a penalty of last resort.
What happens if the obligated spouse cannot afford to pay the court-ordered alimony amount?
A change in the obligated spouse’s circumstances can provide the grounds for reexamining the alimony obligation. However, it is improper to just stop paying. The obligated spouse should immediately begin proceedings to obtain an amendment to the alimony order. This is when an experienced attorney is needed to seek a judicial order amending the alimony obligation. “A change in circumstances” might include:
• The receiving spouse or partner no longer needs the financial assistance having found employment, another partner, or with the children out of the house, an ability to find reasonable employment.
• The obligated spouse has a significant decrease in income.
• The receiving spouse is not making a good faith effort to become self-supporting.
Too many times former spouses avoid the inconvenience of returning to court to modify an alimony order. Common reasons for avoiding the hassle of going back to court to modify alimony might include:
• Believing that the job loss or income drop is merely temporary
• Feeling too stressed and worried about other things to bother with alimony arrears
• Being in jail or prison where court filings are difficult
• Spousal support is not a priority
Procrastination in filing a motion to modify an alimony order can be costly. Ordinarily a modification order cannot be issued retroactively, so any arrears that accumulate even after circumstances have changed must be paid and cannot be modified by any subsequent court order.
When Experienced Counsel Is Necessary To Protect Your Interests
Whether you are a receiving spouse whose former partner has fallen into arrears or an obligated spouse whose circumstances have changed, making alimony payments impossible, you should seek experienced counsel to ensure that your rights and obligations are fully protected. Unfortunately, when relationships fall apart, the emotional fallout often compels former partners into cruel or dishonorable behaviors. Rather than let emotions overwhelm the situation, especially when finances are involved, experienced divorce attorneys can come in and represent your interests in a professional manner. Courts prefer the parties to a divorce to work out the details of spousal support and child custody, so an experienced spousal support attorney can create a dissolution agreement that works specifically for you.
Mediating Alimony Disputes
When couples get divorced or have a dispute regarding a family law matter, they have the right to have the issue determined by a judge or by coming to a mutual agreement, often with the help of a qualified mediator. Mediation is an alternative to going to court to resolve issues pertaining to divorce. In mediation, you and your spouse meet with a professional mediator, who helps you negotiate all of the issues that need to be resolved in order to settle your dispute. Once you and your spouse have completed mediation and come to an agreement, that agreement must be reviewed by a judge, who (if he or she approves of the terms of the agreement), will issue a new spousal support order that reflects the terms of the mediated agreement. Alimony arrangements are not binding unless they are set forth in a court order. Likewise, any subsequent changes to those arrangements must also be set forth in a court order. You and your spouse cannot unilaterally or bilaterally change the terms of court-ordered alimony without getting those changes approved and decreed by a court. This is where an experienced family law attorney comes in. If your ex-spouse isn’t paying or is behind on paying you court-ordered alimony, do not attempt to deal with it yourself. Contact an experienced family law—divorce lawyer in Utah who can persuade the court to begin collection actions against your ex-spouse as soon as possible.
Consequences of Not Paying Child Support
Child support is a term that is often found in many family law and divorce cases. It refers to the monthly payments that are made from one parent (usually the non-custodial parent) to the other parent (i.e., the custodial parent) for the purposes of raising their child. As such, the money from a child support payment may only be used to pay for items that affect the health and well-being of the child, such as food, clothing, medical needs, and so on.
The main reason that child support may be ordered is to ensure that the child does not suffer the financial impact that can result from their parents’ separation or divorce. In other words, child support allows the child to continue receiving economic benefits as if they were still living in a two-parent household. Child support is also court-ordered because it is the law—a biological parent is legally obligated to support their child.
For example, suppose you had a child with another person. The three of you lived together as a family for several years, but then your partner decided to move out. Your partner, assuming they are a biological parent, would then have a duty to send monthly child support payments to you, so that you could raise the child.
On the other hand, if you were the party who moved out and the other parent is the party responsible for raising your child, then you would be the one who would need to make child support payments to them every month. It does not matter whether you and the other parent were married, just so long as you both had a child together and are considered the parents of that child. The amount of child support that a parent may need to pay each month will be set by state guidelines and determined by the court. The court may adjust the number provided by state child support statutes by evaluating certain factors, such as whether the child has special needs or how many children require child support. Child support payments are generally terminated once the child reaches the age of majority in their state.
What Happens If I Fail to Pay Child Support?
Failing to pay child support can have severe consequences. Courts take this responsibility very seriously and will typically give high priority to issues concerning missed child support payments. The first thing that can happen when a non-custodial parent misses a child support payment or does not pay the full amount is that the custodial parent can enlist the help of the court and state to have the child support order enforced. The type of punishment for not paying child support will usually depend on the reasons that a parent failed to pay child support and also on how far behind they are in missed payments.
Some common punishments that a court may issue for failing to pay child support include:
• The court may order that a lien be placed against the parent’s property until the payments have been made. If the parent fails to do so before the lien period expires, then the property that the lien was placed on can be seized.
• The missing payments may be reported to credit agencies as debt, which in turn, could affect that parent’s credit score.
• The court may revoke or suspend the parent’s driving privileges and recreational licenses. In a worst case scenario, the court may even revoke a professional license like one issued by a bar association or medical board.
• The other parent may obtain a wage garnishment order from the court. A wage garnishment order will inform an employer to withhold a certain portion of a person’s paycheck until the amount of money they owe is paid off.
• A court may also hold an indebted parent in contempt of court or issue a warrant for their arrest.
In addition, if the court issues a warrant for the indebted parent’s arrest, then they may also face criminal penalties for not paying child support, including having to pay criminal fines and potentially receiving a jail or prison sentence.
What Can I Do If I Can’t Make My Child Support Payments?
Parents should strive to pay child support in full each month. This can help them to avoid civil and criminal penalties. If a parent is not able to make their child support payments, they may be able to have the child support order modified to a more affordable rate. However, it should be noted that it is very difficult to obtain a child support modification. Moreover, indebted parents will typically need to make back payments on child support.
To initiate the modification process, it is best if the non-custodial parent communicates with the custodial parent and explains the issue. Together, the parties may petition the court to have the original child custody order modified. The custodial parent must also provide a legally necessary reason for the modification. Some reasons that may entitle the non-custodial parent to a modification order include:
• Losing a job or having to take a job for less pay;
• Encountering a medical or health issue that makes it impossible to work;
• Increasing school or healthcare costs for the child, which make it impossible for the parent to keep up with payments; and/or
• If the custodial parent received a substantial raise at work.
Lastly, in extreme cases and if the non-custodial parent can get the custodial parent to agree, a party may be able to get the child support order waived. This can happen if the parents decide to reunite or if the custodial parent is financially able to support themselves and the child without the other parent’s financial assistance.
How Far Behind in Child Support Payment Do I Need to Be Before a Warrant Is Issued?
In general, a child support payment may be considered as late the moment that the assigned due date passes and no payment has arrived. Depending on the contents of the child support order, the indebted parent may have a short amount of time (i.e., a grace period) to make up for the missing payment. However, if this period passes and they still have not made the payment, then the court or a state child support agency may issue a “Notice of Child Support Delinquency.” Once such a notice is received, the court or state can begin to issue punishments against the parent like wage garnishment orders or placing liens against their personal and real property. A court may also issue a warrant. Specific to child support cases, a judge may issue two kinds of warrants: a civil and a criminal warrant. A civil warrant is what results when the court holds a non-custodial parent in contempt of court for violating the child support order. This may lead to the non-custodial parent having to pay fines or serving a short jail sentence.
On the other hand, a criminal warrant can be issued when federal or state prosecutors are asked to intervene in a child support case. This can happen when a parent has failed to pay child support for an extended period of time (usually around a year or when the amount owed surpasses $5,000). The parent may then be arrested and will need to appear in court where they can be convicted. A conviction in a criminal case for failing to pay child support can result in heavy criminal fines, a lengthy prison sentence, and the loss of some parental rights.
Can I Lose Custody for Not Paying Child Support?
In general, a parent will typically not lose custody of a child for not paying child support. For one, the parent who has custody is usually not the parent who is legally obligated to make child support payments.
Second, child support and child custody are two separate issues. Therefore, one does not normally affect the other unless the circumstances constitute an exception. For instance, a parent may lose custody of a child for failing to pay child support if they are sentenced to a stint in prison and no longer have the ability to care for the child due to being incarcerated.
Should I Consult a Lawyer About Not Making My Child Support Payments?
It is important to remember that making child support payments will not only directly impact your life, but also your child’s and any other family members who have to contribute money to support them. Aside from the emotional difficulties that you and your loved ones may face as a result of missed child support payments, having to modify a child support plan when you have already missed several payments can cause just as much stress on its own.
Therefore, if you wish to petition the court to modify the amount of your child support payments or are facing serious legal ramifications for failing to make child support payments, then it may be in your best interest to contact a local child support lawyer for further legal guidance. While it is certainly possible to file a petition and to represent yourself in court without an attorney, it is generally not recommended.
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— jannaG (@jannagar07) July 12, 2022
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