Arrears litigation is a common topic in San Diego Family Court. When the court makes an order for one parent to pay the other child support, it is understood and expected that payments will be made. Unfortunately, many times payments are not made pursuant to the order or judgment. Our law firm has litigated, negotiated and settled many “arrears” cases. We have represented the person owed arrears (sometimes on a contingency fee basis) and we have represented the person that owes the arrears. While we cannot guarantee any particular result for a case, we have been very successful in our past representation of clients involved in arrears litigation. Call our office at (619) 284-4113 for more information about child support.
What does Arrears Mean?
Within the context of Family Law, the term arrears means that a person is behind on the payment of a debt or obligation, such as child support. The payor of the support is thus “in arrears” or “owes arrears” the moment they have missed a court-ordered child support or spousal support payment. Such a past-due payment is referred to as “child support arrears” and past-due payment of of spousal support is referred to as “spousal support arrears.”
Can there be Arrears when No Support Order Exists?
There are only arrears when there is a valid order for child support made from a court that has jurisdiction to make such an order. Many of our clients ask, “If the other party and I agree to an amount for child support, and then they don’t pay per the agreement, do they owe arrears?”
The answer to that question is no. If there is no court order, and one party simply doesn’t pay pursuant to an oral agreement between parents, no child support arrears will begin to accrue.
Duty to Support Minors
Under California law, both parents have an ongoing duty to financially support their children until the children reach the age of majority. Thus, when one parent fails to provide such support after a valid court order is entered, the collecting parent has the right to seek the missed payment plus interest accumulated on behalf of the minor child or children, plus sanctions and penalties. Child support and spousal support past-due obligations never go away unless the party entitled to receive the support payment waives the right to collect and even then, there are limitations that must be considered such as the fact that there must be a bona fide dispute regarding the existence of arrears. The law actually requires verbiage stating that there is an actual, bona fide dispute concerning the existence of child support arrears for the family court judge or commissioner to sign off on the agreement.
Can Arrears be Discharged in Bankruptcy?
Child and spousal support arrears cannot be discharged in bankruptcy. Federal law precludes any person from discharging such a “family” obligation in any Chapter 7, Chapter 13 or other Bankruptcy case. Child support arrears never go away unless they are paid or there is some agreement reached to discharge the obligation by the person owed the support arrears.
What happens if my Passport is taken away for failure to pay child support?
Federal law currently requires the INS to suspend and seize the passport of any individual that is $2,500 or more in child support arrears. The balance owed must be paid down in its entirety before the passport can be returned to the child support obligor. The balance owed cannot just be paid down to $2,499 to receive the passport.
What is the Legal Interest Rate for Child Support Arrears?
Unpaid child support accrues at the “simple” interest rate of ten percent (10%). When arrears are paid, the payments are applied first to the principal balance and then to the interest that has accrued. The rule requiring application of payments to principal and then interest is a recent change in the statutory law regarding child support.
What is a Wage Garnishment or Earnings Withholding Order?
As a mechanism to collect on support arrears, a party may request that the other party’s wages or salary be garnished, whereby the paying party’s employer will directly pay the other party.
How to Collect Arrears
Collecting arrears can be very hard, especially when the person that owes is avoiding paying to the extent they possibly can. We often employ various measures to seek collection, including issuing writs of execution and levying bank or investment accounts, filing various motions such as a motion for contempt, and using the court system to apply pressure to the obligor. Sometimes, we represent clients without the client having to pay our fees up front, and we only receive payment if we collect. For our child support arrears collection guide, click here.
Collecting child support from a non-paying parent can be a difficult task. The attorneys at Wilkinson & Finkbeiner, LLP can assist you in such a matter and help you achieve the financial support that is lawfully owed to you and your children. Please call our office at (619) 284-4113 to schedule your consultation with our experienced child support attorneys.