If your ex is working under the table and not paying child support, you can take them to court. When you have custody of your child, the law requires your ex to provide child support on a monthly basis. This money will go toward your child’s expenses, such as schooling, food, and clothing. But if your ex fails to pay the required amount, then it is likely that their wages will be garnished thereafter.
Snuggling mother and son
But if your ex is either working under the table or in an industry where they are paid in cash, it can be difficult for the court to obtain the child support by simply garnishing wages. If this is the case, you can follow these steps to give yourself a good chance of retrieving the child support you are owed.
1. File a motion to enforce the child support order.
The court previously ordered your ex to pay child support. If that isn’t happening, you have the right and obligation to file an enforcement motion with the court. You will want to make clear in your motion that your ex is not making the required monthly payments. You should make it known that they are receiving cash payments and under reporting income to avoid paying child support. After it is filed, the court will set a hearing date.
2. Provide evidence your ex is working under the table.
You may not have evidence that your ex is working under the table when you file your motion for enforcement. But when you make this allegation, the court may allow you to subpoena your ex’s employer to see how they are being paid and how much they’re really making. You can also hire a private investigator who can follow them and determine where they go, where they work, and how they are making their money.
This means the judge can assume your ex’s income even if you are unable to provide evidence of it. The judge will determine how much they are capable of earning in a year and will base child support payments on that income. Even if your ex doesn’t have a job, the judge can impute income by using many factors, such as education, work history, etc.
3. Ensure that court penalties are paid by your spouse.
If your ex is not paying child support, the court can and will penalize your ex, as courts always look out for the best interests of the child. Courts are capable of taking tough action on your ex for not paying child support. Some examples of this include:
• Suspending their driver’s license
• Reporting past due child support to credit agencies
• Placing liens on their property
• Freezing bank account funds or other types of investment accounts
• Revoking or prohibiting obtaining other licenses, such as a hunting, boating, or fishing license
No matter the exact reason why your ex isn’t paying child support, you have options. You owe it to yourself and your child to take appropriate action.
How to Get Back Child Support from Your Ex
Nothing is more frustrating than going through an entire divorce, negotiating everything under the sun, from furniture to child custody, and then having your ex not pay child support. There really is no excuse for failing to pay child support. There’s a kid. The kid needs support. Your ex should pay a fair share. So, if you are the parent who should be receiving child support, and your ex is not paying child support, what can you do?
You have a couple options:
Open a case with the Office or Recovery Services and hope your case worker will collect the back child support (also known as “child support arrearages”).
The Utah Office of Recovery Services (ORS) is, essentially, a clearing house for child support payments.
If you open a case with ORS, it will collect child support from the paying parent and disperse it to the receiving parent. ORS charges a low fee to do this — around $15 per month.
Often, ORS will also collect on back child support, if it can determine a correct child support dollar amount to collect. It usually does this by garnishing the paying spouse’s income from their job.
The problem with letting ORS handle things is they either do a great job collecting, or an absolutely terrible job. When your collection isn’t top on the priority list, or they have to do something different than they normally do, ORS will often shut down and do nothing. And by nothing I mean absolutely jack squat. That leaves you without current and back child support. Not a good place to be.
Collect back child support by filing a motion for contempt with the court.
If ORS isn’t doing what it should, or you simply don’t want to use ORS, filing a motion for contempt (also known as an “order to show cause”) is the way to go.
A motion for contempt asks the court to do a few things: force your ex to pay the back child support, give you a judgment so you can garnish your ex’s wages if payment doesn’t happen, punish you ex for having to go after back child support. Punishment for non-payment can be anything from paying your attorney fees to suspending your ex’s driver license to jail time. (Most common punishment is paying your attorney fees.)
In most cases, it takes one motion for contempt to collect back child support and get exes on board to pay child support in the future. In fact, much of the time, people will pay their back child support before the court hearing because they’re afraid of what the judge will do to them.
Can I Withhold Visitation if my Ex-Spouse Doesn’t Pay Child Support?
Many parents that have been divorced are faced with frustrating financial situations. When one parent can’t or simply won’t pay child support, things get even worse. This can lead to one parent finding themselves in a tight spot, and unsure how to fix the issue. One solution that comes to mind is to withhold visitation until the parent begins paying child support again. Although this seems like a simple and logical answer to a problem, it is something that should not be done.
You may be asking yourself, “why.” It may seem fair on the surface that they unreliable parent should not be able to see their children. After all, they are not helping to support them. However, the laws and regulations behind child support and visitation are not that simple. The court system views these issues as separate legal items. Failing to pay mandated child support is in fact illegal. However, refusing to allow that parent to see their children is also an illegal activity. Even though you may feel justified (and perhaps rightfully so) you do not have the right to decide if a parent can see their children.
Parent rights and visitation explained
Rights do not begin and end with the parents alone. Each and every child has a legal right to have a relationship with both parents. In other words, a child cannot be punished by severing a parental relationship, because that parent is not paying child support. Another sometimes confusing point is that every parent has a financial obligation to support their children. Even in cases of non-custodial parents who do not wish to have relationships with their children. That is why we sometimes see parents paying child support for children they have only meet a handful of times.
What can be done about unpaid child support?
In general, it is a good idea to avoid an ever-escalating fight between you and your ex. You also do not want to risk your good standing in the eyes of the court. Lastly, one illegal activity does not justify another illegal act. If you are dealing with a situation where child support is not being paid you have options. You can call your local child support enforcement office to report the issue. Depending on the situation they can garnish their wages of the offending parent. Other responses can include refusing a passport, intercepting unemployment compensation, and even enforcing jail time. It is best to speak with professionals before taking things into your own hands. If you have any questions or concerns contact a family law firm near you to request a case review or speak with an attorney.
My Ex is Behind on Child Support. Can I Get Back Payments?
When many people ask if they can get retroactive child support, they are wondering if they can get child support they were supposed to be paid under a child support order but never received. To that question, the answer is an unequivocal “yes.” In Utah, as in most states, child support is considered a judgment as of the day it is due.
Child support payments that are overdue are also referred to as “in arrears” or “back child support.” The statute of limitations for pursuing back child support is the date the youngest child referenced in the order reaches the age of majority, plus four years.
I’m Not Married to My Child’s Father and He Has Never Paid Support. Can I Get Back Child Support?
In Utah, as in other states, a man cannot be ordered to pay child support unless he has been established to be the legal father of the child. If parents are married when a child is born, or the child is born less than 300 days after the marriage ended, the woman’s husband is presumed to be the legal father of her child. If the child’s parents were not married, paternity must be established before a court or child support enforcement agency will issue a child support order. The mother, father, or child or their representatives can ask the court to establish paternity, as can various governmental agencies. Once paternity is established, child support can be ordered—including retroactive child support.
A paternity action can be filed up until five years after the child’s eighteenth birthday. Does that mean that you can wait until your child turns 22 ½ and then file a motion to establish paternity and request retroactive child support from your child’s birth through the age of eighteen?
No. Utah Code Section 78B-15-109 states, “The obligor’s liabilities for past support are limited to the period of four years preceding the commencement of an action.” In other words, if you waited until your child was 22 ½ before trying to establish paternity, you would only be entitled to retroactive child support from the four years prior. Since child support obligations in Utah terminate when a child turns eighteen, you might be able to establish paternity (which is useful for purposes of inheritance), but neither you nor your child would receive a penny in retroactive child support. Of course, most people don’t wait that long to seek child support when they are raising a child alone. If you have a young child with a co-parent to whom you are not married, you should strongly consider moving to establish paternity and get a court order for child support—including retroactive child support. As any parent knows, children have a lot of needs, including financial needs. Both parents have a legal obligation to support their children. This is not a burden that you should have to bear alone.
Establishing paternity does not, on its own, create an obligation to pay child support. That said, it does open the door for a child support action. Establishing paternity also paves the way for the other parent to seek child custody, parent time, and an ongoing relationship with the child. If you establish paternity, child support is not the only financial benefit for your child. Should the other parent die while the child is still a minor, your child would be entitled to Social Security and possibly other government benefits as a result of their parent’s death. And, of course, establishing a legal parent-child relationship means that your child would be able to inherit from their other parent under Utah law.
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It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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West Jordan, Utah
84088 United States
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