Divorce FAQ's
1. What happens if a parent falls behind on child support payments?
When a parent does not make child support payments on time, the overdue payments are called “arrears,” and the person is “in arrears” on payments. Judges have become very strict about enforcing child support orders and collecting arrears. The penalties for a parent who racks up child support arrears are as follows:
- Jail;
- Driver’s license revocation;
- Bank accounts are seized;
- Professional licenses are suspended;
- Passports can be suspended;
- A personal injury or worker’s compensation award can be seized;
- Child support arrears become a judgment(s);
- The child support arrears are reported to the credit bureaus;
- Tax refunds are seized;
- Lottery winnings are seized;
- The child support arrears become a judgment on any real estate owned in New Jersey.
The State of New Jersey is constantly creating new penalties and sanctions for parents who accrue large child support arrears. However, based on my observations, the problem of collecting child support arrears is only getting worse. It is extremely expensive to live in New Jersey. Many “dead beat” dads simply move out of New Jersey to escape paying for child support. Many probation departments and desperate mothers are forced to track down “dead beat dads” all around the country. It is not uncommon for a person to move to several states to avoid being “captured” by a child support garnishment order.
2. How is child support enforced if one parent does not pay?
In many cases, the parent does not pay their child support obligations. There is no shortage of “dead beat dads” and “deadbeat moms” in New Jersey. When a parent fails to pay child support child support and the money becomes past due, the amount is called an arrearage. There are two types of arrears: fixed arrears and unfixed arrears. Fixed arrears are amounts which a court has found to be due and owing. Unfixed arrears are amounts which the support payor owes, but which have not been addressed by the court. An enforcement application is an attempt to get the courts to address the arrears and require the owing parent to pay.
A party or an attorney for a party may file an application for enforcement. Additionally, when the child support is being collected by the local Probation Department, the Probation Officer that supervises the case may also file an enforcement application. If a party fails to make their child support payments, the Probation Department will notify the payor that his continued failure to pay will result in contempt proceedings.
Thereafter, once the supporter payor falls behind more than 14 days in payments, then the Probation Department will file a statement with the court, and set forth the facts regarding the nonpayment. Following that step, the Probation Department may then apply to the court for relief on behalf of the party who is opposed to receive support.
In a divorce case, if a party is not paying child support, then an enforcement motion is filed by the supported spouse. Probation will not get involved in enforcement motions of child support if the case is still in divorce proceedings.
3. Can a person be arrested if he does not pay child support?
A court also has other more drastic methods to “encourage” a person pay child support. The court has the ability to suspend a person’s driver’s license or professional license if he refuses to pay child support. A court can suspend a person’s law license, medical license, or any other license. The threat of this type of sanction can instill the fear of god into someone. In many cases, child support arrears are paid up to date rather quickly once this threat is put in writing or in a motion. The court can also suspend a person’s passport if he refuses to pay child support. This can cause significant aggravation to a person if he frequently travels for business.
Additionally, if a person accrues child support arrears then this is reported to the three credit bureaus. A report of significant child support arrears can really nuke a person’s credit score. Moreover, child support arrears also constitute a lien on a person’s real estate. In short, a person can’t refinance their home if he has child support arrears.
If all of the above sanctions still do not work, then the court will issue a bench warrant for the arrest of “deadbeat dad.” The Sheriff will then go out and arrest the “deadbeat dad” at his home or at his place of employment. Once the warrant has been issued, then if the “deadbeat dad” is stopped for a traffic ticket, then the local police officer will arrest and incarcerate him on the bench warrant.
The “deadbeat dad” will then be taken to the local County Jail. The court will set a purge amount. A purge amount is the amount of the child support arrears that the “deadbeat dad” must pay in order to be released from jail.
The “deadbeat dad” will eventually be taken before the court for a “purge hearing.” The court will not permit the defendant to be released until some of the child support arrears can be paid. Moreover, the defendant must also propose a reasonable payment plan for the arrears.
4. I owe tens of thousands of dollars in back child support arrears. Can I file any type of application with the court to abolish my child support arrears?
Unfortunately, there is no way out of paying for child support arrears. New Jersey has an “anti-retroactive” child support modification statute. The anti-retroactive child support modification statute bars the retroactive modification of permanent child support arrears. However, the statute does not bar the retroactive modification/reduction of child support arrears that accrue after the child’s emancipation.
5. I want to come “clean” with my child support arrears. However, my total arrears are now higher than the principal on my mortgage. Is there any way out of this mess?
In my experience, I have noticed that many fathers escape paying their child support by moving to the South and particularly to Florida. It is not uncommon for a parent to amass child support arrears that can approach the amount of $50,000. Many parents get sick of dealing with the pressures of owing such a high amount of arrears. However, many parents have ties to New Jersey, and they want to be able to come back here to visit with friends and relatives. Unfortunately, this often becomes impossible because in most instances there are outstanding warrants for their arrest.
Many distressed parents are really caught up in a quagmire. They want to come clean and start paying off their child support arrears. However, they can’t risk coming back to New Jersey, or attending court because they will be arrested.
There is one way out. Child support arrears that accrue after a child has been emancipated can be modified/reduced. In New Jersey, the child support arrears continue to accrue until the child reaches the age of 23. I have seen cases wherein the arrears continue to accrue until the children have reached the age of 26. Many parents simply “blow off” their child support obligations, and they have no contact with the court. Consequently, the child support arrears inevitably grow into a monstrous amount. The unfortunate part of this problem is that the parent now owes a far greater amount of child support arrears. Many times, the child support arrears continue to accrue long after the children have become emancipated.
The bright line rule is that child support arrears can’t be modified. However, any child support arrears that accrue after a child has been emancipated can be retroactively modified. A parent will have to hire a crafty lawyer and file a motion to request emancipation, and a retroactive modification of child support. A “deadbeat dad” should make a significant payment toward his arrears before any motion is filed. Most courts thoroughly review the parent’s probation payment history before they rule on any child support arrears motion. If a parent has made a good faith effort to pay down some of the arrears, then this increases the chances that a court will be more inclined to grant the parent some type of relief. If a parent has not made any recent child support payments, then the chances of obtaining any type of downward modification of the child support arrears are almost zero.
6. What is the leading case that concerns the retroactive modification of child support arrears?
A very illustrative case on the retroactive modification of child support arrears is Bowens v. Bowens, 286 N.J. Super. 70 (App. Div. 1995). Here, the plaintiff, Robert Bowens, and defendant, Ingrid Bowens, were divorced on June 27, 1986. Their son, Darryl, was born on May 20, 1970. The plaintiff was ordered by the judgment of divorce to pay $20 per week to defendant as child support for Darryl who became eighteen on May 20, 1988. The plaintiff filed a motion on September 28, 1993 that sought the elimination of all support arrears that were incurred following the child’s eighteenth birthday. The motion judge hearing this uncontested matter concluded that Darryl was emancipated when he became eighteen on May 20, 1988, but that he was constrained by the anti-retroactivity provisions of N.J.S.A. 2A:17-56.23a from eliminating the arrears.
Mr. Bowens argued that the anti-retroactive child support modification statute does not bar the elimination of arrears based on the predetermined event of emancipation that occurred before the effective date of N.J.S.A. 2A:17-56.23a. The Appellate Division reversed the trial court, and it affirmed Mr. Bowen’s argument that the child support arrears could be eliminated.
The anti-retroactive child support arrears statute N.J.S.A. 2A:17-56.23a provides in pertinent part:
No payment or installment of an order for child support, or those portions of an order which are allocated for child support, shall be retroactively modified by the court except for the period during which the party seeking relief has pending an application for modification, but only from the date of mailing the notice of motion to the court or from the date of mailing written notice to the other party, either directly or through the appropriate agent. The written notice will state that a change of circumstances has occurred….
This statute, enacted in the year of 1988 was designed to comply with federal legislation. However, the Bowens case specifically holds that the anti-modification statute of child support arrears is not an absolute bar to modification in cases where the arrears accrue after a child’s emancipation.
In summary, the Bowens case held that the anti-retroactive child support modification statute does not bar the elimination of arrears that accrue after the date of the child’s emancipation.
7. Can the collection of my child support arrears be suspended if I am disabled?
Yes, the collection of your child support arrears can be suspended if you are disabled and if you are collecting SSI. A recent illustrative case is Crespo v. Crespo, 395 N.J. Super. 190 (App. Div. 2007). The issue in this case was whether the trial court erred in denying defendant’s motion to suspend payment on his child support arrears where the defendant is disabled and his only income is his monthly is his Supplemental Supplemental Security Income (SSI) disability payment? The Crespo court held that the collection of child support arrears could be suspended if the payor is disabled. The court cited Burns v. Burns, 367 N.J. Super. 29 (App. Div. 2004), that held that “a non-custodial parent is relieved from child support obligations where he or she “is totally disabled and indisputably indigent, surviving solely on SSI benefits directed at providing him with the legislatively-established minimum level of subsistence.” The rationale applies not only to those situation where the court is calculating a support award, but to the obligation to repay a child support obligation that has become due. In summary, the Crespo court held that the collection on arrears must be suspended until such time as the payor has the ability to pay arrears from income or assets, actual or imputed, other than SSI.
8. I now owe $20,000 in child support arrears. Will the Probation Department charge me interest on these arrears?
Yes, the local probation departments have recently begun charging interest on child support arrears. The legality of charging interest on child support arrears was recently addressed by the Appellate Division in the case of Pryce v. Scharff, 384 N.J. Super. 197 (App. Div. 2006) . The specific legal issue was whether the Probation Division was required to collect post-judgment interest on overdue child support being paid through Probation? The Appellate Division held that it was required to charge interest on child support arrears. The Pryce court further held that as the contracted entity to collect child support pursuant to federal mandate, the Probation Division is also required to collect post-judgment interest on support orders that accrue pursuant to R. 5:7-5(g). The Court noted that federal law requires states to efficiently collect child support as a condition of receiving federal funding. Citing 42 U.S.C.A. Sec. 654a(e)(4)(A), the court noted that this law requires that the states monitor and track “support owed under the other and other amounts…. including arrears, interest or late payment penalties and fees.†N.J.S.A. 2A:17-56 is intended to implement the federal requirements regarding collection of child support.
The Pryce court further noted that the New Jersey Court Rules also permit for calculation of post-judgment interest (R. 4:42- 1). The Appellate Division recognized the inherent limitations in the ability of the Probation Division to calculate and collect interest on child support orders because it is only able to do so after assets have been located upon which an execution can be made. However, when a party calculates interest accrued on child support arrears on their own behalf, they are entitled to an order from the trial court directing probation to collect same.
9. I owe my ex-wife $15,000 in child support arrears. She has not been hounding me to pay these arrears for the past 7 years. However, now she is on the warpath and she is coming after me “big time” for these past payments. Is there any statute of limitations to collect child support arrears?
No, there is no statute of limitations to collect child support arrears. This basic rule was recently illustrated in the case of Faro v. Vonder Heyden, Appellate Division, December 29, 2008. Here, the mother waited 7 years to file a motion to try to collect child support arrears. The court held that neither the doctrine of equitable estoppel or laches is a defense for the husband/defendant to pay retro child support payments. Moreover, in the Faro case, the Appellate Division held that the defendant could not prove that he was prejudiced by the 7 year delay.
10. I have just filed a motion to emancipate my son. There are many contested issues in the case. One issue is whether my son is actually attending college. The second issue regards what is the amount of college contribution that I must pay. Finally, the third issue is whether I am still required to provide health insurance for him. The court blew me off, and denied my motion even though I had a good case. What are my chances on appeal?
You have a reasonable chance on appeal. The family court may have made a reversible error by not granting you a plenary hearing. Based upon my review of appellate case law if there are disputed facts the family courts are required to hold a plenary hearing. In your case the court should have granted you a hearing to ascertain if you son was still attending college. An on point case is O’Neill v. O’Neill, New Jersey App. Div., January 18, 2006. Here, the parties had a complicated emancipation litigation. The family court judge denied the motion without any hearing. The issues involved in the motion included emancipation, college contribution issues, and the payment of medical expenses. The family court denied the motion without a plenary hearing. On appeal, the case was reversed and remanded for a hearing. The O’Neill case illustrates that the Appellate Division is encouraging the family courts to hold plenary hearings on contested motions, and not just to base their rulings on conflicting certifications.
11. Are the anti-retroactivity provisions of N.J.S.A. 2A:17.56-23a written in stone?
A common mantra that is frequently repeated by many judges is that child support arrears can’t be retroactively modified.This is the basic theme of the anti-retroactivity provisions of N.J.S.A. 2A:17.56-231. In many cases a person racks up many thousands of dollars of child support even after the date when the child has been declared emancipated. It is important to note that the anti-retroactivity provisions does not bar the retroactive modification of child support in every single case. In some cases child support arrears have been wiped out because the arrears accrued after the child was emancipated. Nonetheless, the child support arrears must have accrued after the date when the child was deemed emancipated by the court.
An illustrative case is Rescinito v. Panetta, 2009 WL 2525373 at 3 (N.J. Super. A.D. Aug. 20, 2009). Here, the court held that the correct date for retroactivity is not the date of the filing of the motion, but rather the date of emancipation. See also, Petruzzi v. Pttruzzi, 2008 WL 3914874 (N.J. Super. A.D. Aug. 27, 2008). Thus, if a person has accrued a substantial amount of arrears after the date of a judicial finding of emancipation, then there certainly is case law to support a reduction of the arrears. The bottom line is that arrears that accrue after a date of emancipation can be reduced and abolished. However, any lawyer must be diligent and point out to the court the specific cases that give the court the authority to reduce these arrears. If a lawyer does not “show the court the light” then most judges will just routinely chant “child support arrears can’t be retroactively modified.” Thankfully, for many New Jersey’ites who owe many thousands of dollars of arrears, this formidable doctrine is now being chipped away. (at least a little bit)