The Frustration and the Decision to Move Forward or Not:
I speak to a number of people (mostly women) every month about bringing an action against their former spouse for back child support or maintenance. Sometimes these women have sued before and been frustrated by their inability to collect the judgement. They want to know what it would take and what it will cost them to actually collect the back support and force their ex to resume payments.
I always have a straight conversation with people about the realities of motions for contempt of court, support judgments and garnishment options. It is important to make a good business decision about spending the money for attorneys fees and court costs to collect child support or maintenance owed . The law suit is only worth the time and money if you can collect sufficient money to cover the fees and costs of the litigation and then some. You also need to look at the psychological cost of the litigation process itself. How much do you need the funds? Is it worth it in terms of the affects on co-parenting? All these factors need to be considered before proceeding.
- Child Support Enforcement: You can ask Child Support Enforcement to assist you in collecting child support or in collecting child support and maintenance if you are owed both. They will not assist you if you are only collecting maintenance. Pro: You do not have to pay them to help you and they have the power to revoke the drivers license of the party not paying. Con: They are often satisfied to get very low payments and they give people lots of chances to comply. We saw a case where the ex was asked to pay $25.00 per month on 40,000.00 in back child support.
- Support Judgement and Collections Action for Back Child Support or Maintenance: You can hire an attorney to go to court and get a Support Judgement that shows the amount of back child support or maintenance owed. With this Judgement in hand you can proceed to collections. You can garnish wages if they are an employee. (can be between 55% to 75% of their salary depending on the circumstances). One factor to consider in garnishing wages is to look to see if there is already a garnishment in place. They could be being garnished for the support of another child or the IRS may have a garnishment against their salary. You cannot garnish beyond the maximum percentage so if others are in front of you there may not be enough left for your garnishment. If your ex is self employed you will not be able to garnish their wages. All these factors need to be considered before moving forward with a garnishment You can also garnish bank accounts if the person has not already closed them or drained them in anticipation of a garnishment.
- NEW CASE LAW: Garnishment of funds in an attorney trust account: In August of 2011, the Colorado Court of Appeals, In In re the Marriage of Rubio found that if a former spouse hired an attorney and had unearned fees in their trust account with that attorney, that it was possible to garnish those funds as part of a collection action. So, if the person you are trying to collect from hires an attorney and puts thousands of dollars as a retainer into a trust account with that attorney, you have the right to garnish that trust account if you have a support judgement.