When your ex stops making child support payments your initial reaction is to want to take him/her to court. You’re stung by how horribly unfair it is that your ex is “getting away with” not doing what s/he is supposed to do. You’re also furious that now YOU have to struggle to make ends meet because your budget has a hole in it the size of Texas!
Before you let your anger drive you to do things that will only make your situation worse: Stop!
Running into court before you really understand what your doing can cost you more money than what you’ve lost in support.
That’s not to say that you should just forget about child support and soldier on without it. However, if you do your homework before you dash off to court, you’ll have a much better chance at seeing real success.
The First Steps to Take When Your Ex Isn’t Making Child Support Payments
1. Look at What Your Court Order Says.
Child support obligations don’t get automatically imposed just because someone filed for divorce. To collect child support, you need a court order that specifically says that one parent is required to pay the other parent X dollars per week in child support.
Until you’ve got that court order, your spouse or ex has no legal obligation to pay you child support. (That’s not to say every parent doesn’t have a moral obligation to support their kids. But you can’t enforce a moral obligation in court!)
If you’ve just filed for divorce and you don’t have that kind of an order in place, you may need to get one asap. The same thing is true if you were never married to your child’s other parent and you now want that parent to pay child support. If your ex isn’t paying support, step number one is to get a court order requiring him/her to do so.
2. Figure Out What’s Going On.
Before you drag your ex back to court for not making child support payments, it helps to know WHY your ex stopped paying. (NOTE: Your initial reaction will be to assume that your ex is just jerking your chain on purpose. Don’t assume! Ask.)
Yes, this means you need to have a conversation with your ex. If that’s not possible, then text your ex or send an email. If your ex doesn’t respond, so be it. At least you tried.
If your ex does respond, ask why your ex stopped making the support payments. (Try to be nice about it. You may be spitting mad, but screaming at your ex is not likely to get you the answers you’re looking for.) Did your ex just get fired or laid off? Is your ex sick? Or, is your ex just not paying you?
If your ex has fallen upon hard times, you may want to cut him/her some slack. Meanwhile, see if you can get your ex to make partial payments for a while. (Some money is better than no money.) On the other hand, if your ex is just being a jerk, knowing that will help you when you do take him/her back to court.
3. Develop a Plan To Make Ends Meet.
When you’re living on the edge, losing your child support is often enough to throw you over. Even though it’s not fair that you’re in this position, you have to find a way to survive. So, the sooner you can find a way to fill the hole in your budget (at least temporarily) the better.
That may mean that you have to take extra hours at work. That may mean you have to cut back on your other expenses. All of that will suck. But, it’s life.
Don’t make the mistake of assuming that you can take your ex back to court and get paid your past-due child support in a week. Courts don’t work that way! Collecting your overdue child support could take you months, or years. In the meantime, you’ve got to find a way to pay your bills as best you can.
4. Talk to a Lawyer
Before you go charging off to court, you’ve got to know your chances of winning. While it may seem obvious to you that you should win because your ex didn’t pay the support s/he was ordered to pay, the law is full of loopholes. (This is part of the reason why knowing why your ex stopped paying is helpful.)
If your ex just got diagnosed with cancer and can’t work, taking him/her back to court to pay child support may accomplish exactly nothing. As a matter of fact, it can put you in an even worse position. That’s because, once you’re back in court, your ex may then decide to petition for a child support reduction in light of his/her illness. So you could end up collecting very little AND becoming entitled to even less child support moving forward.
You also need to know what pursing your ex in court will likely cost you. Lawyers are expensive. While a judge may (or may not!) order your ex to pay for your lawyer in the end, most lawyers will require you to pay them up front. So, you’ve got to find a way to come up with the money at the start.
You also need to assess your situation from a cost/benefit perspective. If a lawyer will charge you $5000 to go to court, but your ex only owes you $2000, going to court might not make sense. (At least, it might not make sense right now.)
5. Investigate Your Options
If hiring a private lawyer is too expensive, you might want to consider contacting your local child support enforcement agency.
Every state has a government agency that is charged with collecting child support payments. (In Illinois the State’s Attorneys’ Offices are charged with that responsibility.) Those agencies will often represent you for free. The problem, of course, is that those agencies are typically swamped. So, while you may get a lawyer “for free,” going through the court process with that lawyer could take you two or three times as long as it would with a private attorney.
Another option may be to hire a private child support collection agency. These agencies will collect your back child support for a fee (usually 35% of whatever is collected.) They will also promise you faster service than the government agencies. But using these agencies isn’t always the best solution.
While some private collection agencies are reputable, others are not. What’s more, each agency has its own contract that it will require you to sign. Some of those contracts are automatically self-renewing. Others contain clauses in their contract that might not be in your best interest. So, before you sign on with any private agency, make sure you carefully read their contract and know what you are doing.
(NOTE: Once you sign on with a private collection agency, the government agency will probably be allowed to close your case. So, if you later decide to go back to the government agency, you will probably have to start all over again.)
Frequently Asked Questions About Collecting Child Support
Once you’ve decided to pursue your ex in court, it helps to understand how the court system works. That will help you make sure your expectations are realistic. It will also save you an enormous amount of frustration as your case progresses.
Here are answers to some frequently asked questions about collecting child support payments.
1. Can I get my ex thrown in jail for not paying child support?
Maybe. If your ex is purposely not paying support when s/he has the means to pay it, then sometimes a judge will hold your ex in contempt of court, and throw him/her in jail. But, it’s rare. That’s for a good reason.
Getting your ex thrown into jail for not paying support may seem like a great idea. But, when your ex is in jail, s/he isn’t working. So throwing someone in jail for not paying support is usually counter-productive. (On the other hand, you’d be surprised at how fast some people can come up with money when they find themselves in handcuffs being led off to jail!)
2. What are the potential penalties for not making child support payments?
A lot of penalties can be imposed on someone who purposely fails to pay court-ordered child support. Government support agencies usually have the authority to seek any or all of these penalties. Private attorneys may not always be able to get all of these penalties imposed on a deadbeat child support payor.
Here are some of the penalties that may be imposed for not paying child support. (NOTE: You should check with an attorney in your state to see which of these penalties may be available to you.)
- Your ex’s wages can be garnished;
- Your ex’s tax refund can be intercepted and paid to you;
- Liens can be placed against any real estate your ex owes;
- You can report the debt to credit bureaus (that will affect your ex’s credit);
- You can freeze your ex’s bank accounts;
- Your ex’s driver’s license or professional licenses can be suspended (in some states);
- Your ex can be held in contempt of court;
- Fines, penalties, and interest on past-due support can get added to what your ex owes you;
- Your ex might be ordered to pay any attorney’s fees you incurred in chasing him/her down for past-due child support;
- In appropriate cases, your ex can be thrown in jail.
3. My ex is threatening to go bankrupt on his/her past-due child support obligations. Am I screwed?
No. You can’t discharge past due child support payments in bankruptcy. So, your ex can file for bankruptcy. But, s/he can’t go bankrupt on the support s/he owes you. (Of course, that doesn’t mean that you’ll get paid any time soon, either. But at least your ex’s debt won’t be washed away.)
4. What happens if my ex doesn’t have the money to pay what s/he owes?
You can’t get blood from a turnip. If your ex truly has no income and no assets to pay you support, you may be out of luck … for now. But, if your ex ever does have an income, or ever does acquire any assets, then you can go after that income or those assets to pay the child support arrearage.
5. If my ex isn’t paying child support, why should I let him/her see the kids?
Child support and parenting time (visitation) are separate obligations. It doesn’t matter whether your ex pays child support or not. You can not deny him/her time with the kids.
If you refuse to let your ex see the kids, chances are YOU will be in contempt of court, too. Two wrongs don’t make a right. Don’t do that to yourself. Don’t do that to your kids.