If you have an order for spousal or child support and the paying parent has fallen behind in the payments, you may be able to take several legal steps to enforce your rights to the support.
First, you must decide whether you would like to hire an attorney to help you enforce your rights or would rather have your rights enforced by the Oregon Department of Justice’s Division of Child Support or a local district attorney’s office. Some advantages of having a private attorney’s help are that you will be able to work closely with the attorney to decide how you would like to enforce your rights and have the attorney deal directly with the non-paying parent. The disadvantage to hiring an attorney to help you is that you will probably have to pay the attorney’s fees. In certain instances the court may order the non-paying parent to pay your attorney fees; however, most attorneys will ask that you deposit an initial retainer with them for legal fees and expenses. If you choose to have a child support enforcement agency handle your case, you will generally not have to pay a retainer or legal fees (although there may be other fees, which are discussed later). Note that when a child support agency is handling your case, the enforcing agency will decide the appropriate way to enforce your rights and the agency will decide how to work with the non-paying parent toward a satisfactory resolution. To have a support enforcement agency handle your case, you must apply for services from the Department of Justice’s Division of Child Support. For more information, visit their website at www.dcs.state.or.us.
Wage Withholding
One way to collect unpaid child or spousal support is to ask that the back support be taken directly from the wages of the paying parent. This requires a wage-withholding order issued either by a court or by a child support enforcement agency. In support cases handled by a support enforcement agency, it is almost always the agency that will issue the wage-withholding order. Some agencies will not pursue spousal support unless they are also pursuing an award of child support. If your case is being handled by an enforcement agency, ask about their specific policies regarding the enforcement of spousal support.
When a wage withholding order is issued, the amount taken from the parent’s wages to pay current and retroactive support is usually 120 percent of the current support payment amount, up to a maximum of 50 percent of the paying parent’s income. This means that for a monthly support order of $100, the amount taken from the paycheck will be $120 — $100 for the current support and $20 (or 20 percent) for the back support. Once the back support has been paid off, just the amount of the current monthly order would be taken out, again up to a maximum of 50 percent of the paying parent’s income. If only back support is owed, the amount withheld will vary on the circumstances of the case but will usually be whatever the last ordered payment amount was, until the back support is paid in full.
Once income withholding is in place, it continues as long as support is owed. If the paying parent changes jobs, the wage-withholding order will “follow” that paying parent to any new job that the support enforcement agency is aware of. If no support agency is handling your case, a lawyer can help you make sure a new employer is given a copy of the withholding order. Like wages, income from workers’ compensation and unemployment benefits can also be withheld for current and back support.
A support enforcement agency can help you to arrange income withholding. If your support is not currently routed through the state, contact the Division of Child Support for this service. Under a new law, if money is being withheld from your paycheck for support payments, these payments must be routed through a state office, even if a support agency is not doing enforcement on your case. If you are having an enforcement agency handle your case, there will be a $25.00 fee for each year the agency collects more than $500.00 for you. A lawyer may also help you arrange income withholding, although you may be responsible for the lawyer’s fees and expenses.
Other Methods of Collecting Back Support
In addition to withholding the paying parent’s wages, a possible consequence for non-payment of support is license suspension, particularly when the paying parent does not have regular income or employment. If a parent is owed at least $2,500 in back child support and the other parent has an occupational license, a driver’s license or a hunting or fishing license issued by the state, the district attorney or Division of Child Support can suspend these licenses unless the paying parent reduces the back support to under $2,500 or agrees to a repayment plan. Only the district attorney and the Division of Child Support can do these license suspensions or establish a payment plan.
Interception of tax refunds coming to the paying parent is another way to collect back child and spousal support. Again, only the district attorney and Division of Child Support can use this method.
There are several other things that the district attorney, Division of Child Support or a lawyer can help you with. One is garnishing the bank account or other sources of money of a paying parent. Placing liens on the real property (the land or buildings) owed by the paying parent is another way, so that you can receive some or all of what is owed to you when the land is sold. Some new laws also create liens on a paying parent’s personal property, such as automobiles.
A “contempt of court” matter is something else a support agency or lawyer can help you with. A contempt case requires filing documents with the court to have a hearing to decide whether the paying parent violated the order to pay support. If the judge finds that the parent willfully disobeyed the support order, a number of sanctions could be imposed against the parent. He or she could be ordered to spend time in jail as punishment, or to pay all or part of the back support by a deadline in order to avoid going to jail.
If your former spouse lives in a different state than you, the Uniform Interstate Family Support Act known as “UIFSA” controls some aspects of where and how to recover back support. Depending on your case, legal proceedings might have to be held in the state where the paying parent lives in order to collect the back support. The child support agency or a lawyer can help you with this, but dealing with other states can be a long process, and will require you to provide information and cooperate with the enforcing state.
Any time you are involved with support enforcement proceedings, you will probably have to state under oath how much money the other parent has paid and how much is still owed to you. It is very important to keep accurate records of all support payments, including the date the payment is made, the amount of the payment, and the form of payment (for example, personal check or money order). When your support case is handled by the district attorney’s office or the Department of Justice, the payments go through the state, which keeps computerized records of the payments. The state agencies automatically begin some enforcement actions based on these records. If your case is being handled by a support enforcement agency, it is very important that all payments go through the agency. Otherwise, the paying parent may not get credit for payments made. Also, remember that new laws require that all cases with withholding income as the method of payment have those payments routed through the state, even if a support agency is not doing any enforcement on the case. If your support payments go through the state, make sure you know if the child support agency is also doing enforcement for you.
Support enforcement is a complicated and frequently changing area of the law. Contact an attorney for current information and to learn about any changes to the laws regarding support enforcement.
Legal editors: Drew Baumchen and David McCaffery, June 2009
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