Where’s the Money?: collecting child support or maintenance judgements
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.
Legal Issues and New Case Law:
There are a number of different ways to address unpaid child support or maintenance:
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.
Legal Issues and New Case Law:
There are a number of different ways to address unpaid child support or maintenance:
- 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.
- Contempt of Court: If you have a court order that states that the other party is supposed to be paying child support or maintenance and they are not doing so, they are in contempt of court. A contempt of court action is quasi criminal in nature and the judge has broad power to enforce the order including putting someone in jail for non payment. The other party does not have a right to counsel like they would in a criminal proceeding. Often times the Court will give someone one or more chances before they put them in jail. This means that you have to go back to court a number of times and incur the attorney fees that this requires. Also, a defense to contempt of court is that they are unable to pay and still meet their reasonable needs. So you need to consider if this defense will succeed. The money will still be owed but the court may order much smaller payments.
- Motion to Enforce: This action can be brought but it does not have the semi criminal nature of a motion for contempt. The court still has the ability to impose sanctions on the party that is not paying.
It is important to fully consider the potential benefit and the costs of any action. Not all attorneys will calculate with you to determine if it is worthwhile to move forward. Also, many will not inquire about the psychological or parenting issues that should also be considered. So, please make sure you ask for these assessments before you decide to move forward.
