HOW DO I ENFORCE AN ORDER FOR CHILD SUPPORT?
Child Support Enforcement And Collection
The idea of child support payments is likely not a radical or unheard-of concept to anyone today. As part of a divorce, the court will determine what amount of child support is needed and order that the parent make such payments each month. What is less discussed is how child support orders are enforced and collected. For example, does the receiving spouse have to hound the paying spouse each month? If the support isn’t paid, does the court have to get involved again? What follows is a short overview of how child support is enforced and collected, including back child support.
Enforcement Process
The state of Kansas long ago gave up on the idea that support payments should be left to the good word of the parties. It is certainly possible for individuals to arrange support obligations for children outside of a divorce. For example, an unmarried couple that has a child may enter into a private agreement where on parent pays the other each month. However, when paternity is established or a divorce has taken place, e.g., the court is involved, Kansas requires a firmer commitment from the parents. This comes in the form of an “income withholding order,” as allowed by Section 23-3103. As the name suggests, an income withholding order is an official document that requires an employer to withhold a set amount of income each paycheck. These orders can be voluntarily agreed to or forced upon the paying parent via court order. Once in place, the order functions just like employer-collected income tax, with the employer subtracting the amount before giving the remainder to the employee as their paycheck.
Under an income withholding order the funds do not pass directly to the other parent, however. Instead, all the funds are paid to a state agency, the Kansas Department for Children and Families. The agency has established a branch specifically to deal with collections and processing of payments, known as the Child Support Services Kansas Payment Center. All income withholding orders will direct the employer to submit the payment to this agency, and the agency will then submit the payment to the receiving spouse.
But why? This may seem like unnecessary bureaucracy, involving the state for no reason. However, it is very important that the Department for Children and Families be kept in the loop of these payments, because the state may have to foot the bill on child support shortcomings. Kansas must ensure that children are taken care of, and when a paying parent fails to provide for the child, the state may end up having to offer financial support through welfare-type benefits. By involving the state in every child support transaction, Kansas attempts to catch these missed payments early and ensure no child is left dangerously unsupported.
Unfulfilled Child Support Obligations
As noted above, the state of Kansas may end up on the hook for missed child support payments. This isn’t the case for every missed payment, however. Instead, the state reserves support for very at-risk children and parents, who must apply for various benefits through welfare-based programs. Any time that payments are incomplete or missed, the receiving parent can pursue those payments as back child support. Additionally, once the state has had to make payments to support children, it also has the power to seek back child support for the amount it had to pay out in benefits.
When a parent falls behind in child support payments, the missed payment amounts begin to accumulate. These accumulated amounts are known as arrears. Back child support often arises in two situations: when a parent is self-employed, and thus fails to honor the income withholding order as his or her own employer; or when the parent changes jobs and willfully avoids telling the new employer about the order. Once a parent has accumulated at least a month’s worth of back support, the receiving parent can bring a Motion to Compel against the parent in arrears. This motion requires the parties to appear in court so the judge can hear from the parents about the arrears. Once the court is able to determine why payments have been incomplete or have stopped in full, the court is able to take appropriate actions. These can include making sure a new employer has the necessary income withholding order, forcing the parent to pay the amount owed in arrears, granting a lien upon property owned by the paying parent, or even—in extreme cases—punishing willful violations by holding the parent in contempt (jailing them for a short period). Generally, the court will not require a parent in arrears to pay the back-owed amount in one lump sum. Instead, the court will likely increase the amount owed each month until the arrears are fully paid off.
As noted above, the state may also have an interest in collecting arrears that were replaced with state benefits. In these cases, the state will initiate a criminal prosecution against the non-paying parent. The state will generally set the parent’s bond as a purge amount: the full amount the parent owes. If the parent is unable to pay this amount, the court will likely release them with an order to make minimum monthly payments to the state—just like child support payments, but going into the state’s treasury rather than the other parent’s account. This entire process is fairly unrelated and independent of the receiving parents, who can neither prevent or bring about these cases. Instead, the decision lies with the state, as it is recouping money it had to pay on behalf of the defendant-parent. It is important to know about this process, though, because when the other parent is incarcerated or owes arrears to the state, these facts are likely to affect current support payments.
Child support enforcement and collection is a marathon, not a race. It is very important to establish support payments via the initial income withholding order. However, when payments become incomplete or missed, it isn’t always clear when the best time to bring suit is. If brought too soon, you may end up having to return to court frequently to address more and more deficiencies; wait too long and the state may jump ahead in trying to collect the debt owed to it. Only when competent, experienced legal counsel is contacted can you be sure that you are making the best decision as to how to collect the support you and your child are owed. If you need the help of an experienced divorce and family law attorney in Johnson County, Kansas feel free to contact our office.