How Courts Enforce Spousal and Child Support Orders

People often hear of “deadbeat parents” that fail to pay Court ordered spousal and/or child support. This dilemma is nothing new and has a long-standing history in the Family Court system, likely dating back to the very first support Orders. This article will review the possible enforcement mechanisms a Court has at its disposal to force one party to pay Court ordered support.

The most common method to collect support payments is for the Court to issue a wage garnishment Order. Family Code Section 5230 provides that a wage garnishment Order is mandatory in any support proceeding. The wage garnishment Order will force the payor’s employer to deduct support payments from earnings before the payor receives his or her paycheck. The benefit to this method of enforcement is that the payor has no room for error in the payment of support, as it is taken care of by the employer. The employer can be held civilly liable for the willful disregard of a wage garnishment Order, which does occur occasionally, usually in small or family-owned businesses.

However, not all individuals have a job subject to a wage garnishment Order, such as those that are self-employed or receive most of their earnings in a cash form, such as any service industry that operates on gratuities. In cases such as these, the Court has no real device to force monthly support payments and must first wait until support goes unpaid to take any action. If support does go unpaid, the Court has various enforcement measures to collect unpaid support.

The default enforcement power of the Court is to hold the support payor in contempt. To support a contempt finding, the support payee must prove four elements: the making of a valid Court Order for support, knowledge of that Order by the payor, ability of the payor to render compliance, and the willful disobedience of the Court Order. Although the payor previously could successfully raise the defense that he or she was “unable to pay” support due to injury, unemployment, etc., this defense has since been discarded except in rare cases.

If the support payee can prove a contempt, and the payor is unable to assert any valid defenses, the Court has a wide array of punishments. The Court can order the payment of a fine not to exceed $1,000 and up to 120 hours of community service for each count of contempt. Keep in mind that each monthly occurrence of unpaid support constitutes one count of contempt, so the counts and respective punishments can add up quickly. In the alternative, the Court has the power to imprison the payor until compliance with the Order is established. The imprisonment of a support payor is quite harsh and is usually only utilized in extreme cases.

Another method, although used less frequently, is to refer the case to the District Attorney’s office for criminal prosecution. Penal Code Section 270 relates to child support orders and provides that it is a misdemeanor to “willfully fail to support a child.” Penal Code Section 270.6 relates to spousal support orders and makes it a misdemeanor to flee California and willfully fail to pay spousal support. Violations of either section are punishable by up to one-year imprisonment and/or a fine of up to $2,000.

However, in some cases, jail and community service are simply not enough to actually put support money in the payee’s hands. The Court has become creative in how to obtain support money from the payor where jail and community service do not suffice. For example, the Court has the power to intercept any federal or state income tax refund owing to the payor and divert as much of the proceeds as necessary to the payee to satisfy past due support obligations. The Court can force a debtor examination, whereby the payor is forced to sit for a deposition deigned to reveal any assets he or she owns, and even those being held by another for his or her benefit. The Court can thereafter seize the real and/or personal property assets of the payor and force a judicial sale of those assets to satisfy support obligations.

Another creative way to combat nonpayment of support comes from the Federal Fair Credit Reporting Act. The provisions of this act mandate that the credit report of any payor with a delinquent support obligation reflect this fact by showing an outstanding debt on the credit report itself. The inclusion of this debt, treated akin to credit card and loan obligations, makes it more difficult for the payor to obtain financing for the purchase of large assets, such as a car or home.

In some cases when a payor flees California, it becomes difficult for the Court to exercise its enforcement powers against that individual because of their absence. Obviously, when the Court cannot confront and punish the payor, its enforcement powers are severely limited. Federal and State locator programs are designed to remedy this situation. These locator programs compile and use information such as date and place of birth; physical description; social security number; employment history and earnings; last known address and telephone number; driver’s license number, driving record, and vehicle registration and the address, telephone number, and Social Security information obtained from a public utility or cell phone provider to find the payor. Through the compilation of this information, the program can locate the payor for proper service of enforcement papers.

In cases where the payor earns a living using a professional license issued by the State of California, or a department thereof, the law allows the license to be summarily suspended for the nonpayment of support. Typical professions that operate under a license are real estate agents, attorneys, doctors, accountants, and the like. The Court can also suspend a payor’s driver’s license, and in some extreme cases, revoke it if support goes unpaid for a prolonged period of time. The Court can also suspend a payor’s passport.

The California Legislature and Court system have devised many different methods to ensure that support obligations are satisfied as they come due. However, as more and more support obligations go unpaid, it is very difficult for the Courts to enforce these orders, and many payees are forced to wait and suffer while the wheels of justice continue to turn slowly.