Of all the non-criminal cases that can land someone in court, few carry the prospect of time in jail like failure to pay child support does. To make it even more precarious, the entire proceeding seems to operate in the reverse of what we think we know about the justice system; instead of going to jail for something you did, you can be sent to jail for something you didn’t do. In addition, instead of someone else having the burden of proof as to why you should be sent to jail, you have the burden of proving why you should not be sent to jail.
In New York State, if you are the non-custodial parent of a child, it is likely that you will be subject to a court order that requires you to pay child support: 17% of your income for one child, 25% for two children, 29% for three children, 31% for four children, and 35% for five or more children. While there are some deductions from your income that will be factored prior to taking the required percentage, federal and state taxes are not among them. This means that for two children the child support obligation is pretty close to 25% of your gross income, not 25% of your “take home pay.”
If are encumbered by a crushing child support obligation it can be pretty easy to fall behind, and the consequences can be severe. It’s a pretty easy case for the custodial parent to prove. All they have to show is
- There is a child support order issued by a court of law,
- You know about the order (because you were in court when it was rendered, or because it is the result of an agreement that you made),
- You failed to pay your child support (which can simply be shown with records from the Support Collection Unit),
- And that’s it.
The burden of proof then shifts to the non-custodial parent to prove that he or she couldn’t pay. This is not as easy as it sounds.
Losing your job does not mean you can’t pay your child support. There is a legal presumption that the non-custodial parent is able to pay his or her child support. If the non-custodial parent loses a job, there is a legal presumption that he or she can find another equally paying job. To overcome this presumption generally requires a serious hardship, something like a serious injury or illness, or incarceration. In the absence of a “serious hardship, the non-custodian will be required to prove that they have made a diligent effort to find a new job, by providing the court with a job diary showing details of all the places they applied for a job, and an explanation for why they didn’t get hired.
Having substantial debts or high living expenses does not mean you can’t pay your child support. In the eyes of the court, the child support obligation comes first, and a non-custodial parent cannot choose to pay off debts, or meet other financial obligations instead of paying their child support obligation.
Having other children to support does not mean you can’t pay your child support. In the eyes of the court, the court ordered child support obligation comes first, and a non-custodial parent cannot choose to pay support for other children who are not covered by the court order being enforced.
Having a sick relative to care for, or wanting to get a better education does not mean you can’t pay your child support. You cannot leave your job to care for a sick relative, or pursue an education, if it means you can’t pay your court ordered child support.
Even if a non-custodial parent is able to prove that he or she could not pay his or her child support, it does not result in the child support arrears (the outstanding child support debt) being reduced or forgiven. In fact, the judge is not allowed to reduce or cancel the child support debt. The judge is required to enter a money judgment for the child support arrears, which can be enforced in several different ways, described below.
The only way to reduce the amount of child support that a non-custodial parent is required to pay going forward is for the non-custodian to go to court and file a Modification Petition, asking a judge to reduce his or her child support obligation. If a non-custodian loses a job, or has some other hardship that makes it too difficult to meet their child support obligation, they need to immediately go to court and ask for a reduction. Do not wait until you owe a lot of money before you seek a reduction, it can become a hole you cannot climb out of!
If the non-custodial parent is able to prove that they could not pay their child support, in other words, that the failure to pay was involuntary (or not willful in the language of the court), the court is still required to issue an order designed to try and force the non-custodian to pay their child support arrears. The sanctions for a non-willful failure to pay child support are the following:
- Money Judgment (mentioned above), which can be used by the custodial parent to seize the non-custodian’s bank account, salary, income tax returns, and other property;
- An income deduction order, which can require the non-custodian’s employer to deduct payments from the non-custodian’s paycheck, and send then send the money to the custodian;
- The court can require the non-custodian to purchase a bond and give it to the custodian as payment;
- The court can issue an “order of sequestration”, authorizing the custodian to seize property from the non-custodian;
- The court can suspend the non-custodian’s NYS driver’s license;
- The court can suspend the non-custodian’s NYS professional or business license;
- The court may suspend the non-custodian’s recreational license.
(Many of the above sanctions, in addition to others, can be implemented by the NYS Office of Child Support Enforcement, without either party going to court).
Even if the non-custodial parent proves that they could not pay their child support, the Court is required to issue one of the above sanctions, or explain in a written decision its reasons for failing to do so.
If the court finds that the non-custodian’s failure to pay child support is Willful, i.e.: deliberate and intentional, the sanctions are more severe. Once the custodial parent proves that the non-custodian failed to obey a child support order he or she knew about, it is legally assumed that the non-custodian’s failure to pay is willful, and it is the non-custodian’s burden to prove that he or she could not pay. If the non-custodian fails to prove that he or she could not pay, the sanctions can be the following:
- The non-custodian will be ordered to pay the custodian’s legal fees;
- The court may require the non-custodian to pay 9% interest on the amount of child support owed;
- The court may put the non-custodian on probation, meaning that the court will impose conditions that the non-custodian must obey, and assign a probation officer to supervise the non-custodian’s compliance with the conditions;
- The court may require the non-custodian to attend a program to help him or her find a job, or deal with addiction, or pursue education;
- The court may commit the non-custodian to jail for up to six months.
Although the most severe sanction is jail, the courts do recognize that jail can and likely will be counter-productive (how do you earn money to pay child support while sitting in jail?). For this reason, the jail sentences actually imposed are often non-consecutive, meaning that the non-custodian will only report to jail for a few days at a time, on weekends, or other days to accommodate a work schedule.
I hope this article adequately conveys the fact that missed child support payments is a very serious matter. If you experience a hardship that adversely effects your ability to meet your child support obligation, you must go to court immediately and ask for a modification. Do not wait until you owe a sum of money that you can never pay off. If you are already in debt from missing your child support payments, and your payments are not being processed by the Support Collection Unit, try to work out a payment plan with the custodial parent and give them a good reason to stay out of court. If it’s too late, you are in child support debt, and you have been served with a court summons and a petition to enforce your child support obligation, you will need an attorney.
If you cannot afford to pay an attorney the court may appoint one to defend you. If you earn too much money to be assigned an attorney, you will need to find a way to hire one. Do what you have to do and hire an experienced attorney. There is too much at stake for you to go into court on a petition to enforce a child support order without good legal advice.
For more information on Failure To Pay Child Support In New York, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (718) 618-5995 today.
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