Divorce FAQ's
1. I am thousands of dollars in arrears in my child support payments. What are some good strategies to avoid being locked up?
This is one of the most frequently raised issues that arise in matrimonial practice. Many people don’t understand that when a judge makes an order for child support he is creating custom-made law just for you to follow. If you fail to comply with the terms of the child support order, then you can be found in contempt of court. In most civil cases, the issue is only civil, and it doesn’t necessarily involve the prospect of incarceration. This is not true of child support. The failure to pay child support has therefore developed into a quasi-criminal type of case, in which you can be found in violation of both civil terms, as well as criminal laws.
In New Jersey if you don’t pay child support, then this is a prima facie case of a willful noncompliance. As a result, the burden of proof is on you as to your innocence of the contempt. A simpler way of stating this is that YOU ARE GUILTY UNTIL PROVEN INNOCENT.
One possible defense to a contempt charge is that you did not pay child support because the custodial parent voluntarily relinquished custody and control of the child to you. If she sent the child to live with someone else, other than you, then this defense will not help you. The voluntary relinquishment must have been for a time period in excess of your regular visitation periods.
A second defense is that you lack the ability to pay the amount of child support ordered by the court. This defense is a long shot at best. It does not mean that you simply cannot afford to pay because you have other obligations like your mortgage, house payment, and other bills. In order to prevail on this defense you must convince the court of EACH OF THE FOLLOWING;
- You lacked the ability to provide support in the amount ordered;
- You had no property that could be sold, mortgaged, or otherwise pledged to raise the funds needed;
- You actually attempted to borrow the funds needed but were unsuccessful, AND
- You knew of no source at all from which you could have borrowed or obtained the money by ANY legal means.
The third defense is to raise any technical problems with the original child support order. There may be some technical problems with the original child support order or with the child support enforcement motion. Some possible legal challenges to the original child support order include such things as laches, estoppel, lack of proper notice of the original child support hearing, or fraud in the way that the case was filed. The courts take child support issues extremely seriously. The courts really do not want to send you to jail if you are truly sincere in your efforts to pay your child support.
2. What are some good strategies to defend against a child support contempt charge?
The best strategy is to make partial payments. At a contempt hearing the court focuses on whether the deadbeat parent is at least making an effort to pay their child support obligations. If the probation report shows that the deadbeat parent is at least making some partial payments, then a court will be less inclined to impose a jail term.
Some additional strategies to avoid jail time when you are faced with contempt charges are as follows;
- Start paying at least something immediately.
- Carefully detail your living expenses and income for the entire period during which child support was not paid, to demonstrate you didn’t have the money.
- Come up with a reasonable proposal for your future compliance with the child support order. Propose a reasonable amount for the current child support obligation, and a reasonable plan to pay back any arrears.
- Develop arguments that support your unemployment or under-employment, such as changes in your field of work that reduced your income, or actually made it impossible to find comparable employment.
- Develop a plan to assure the court that you will abide by any further court orders.