Is your ex-spouse a "deadbeat"?

Is your child's father or mother not paying you the child support he/she owes? This article discusses your options.

In California, both parents have a duty to provide support for a child. Whether parents are unmarried, divorced, or separated, child support is usually paid by the parent who does not have primary custody of the child. These payments are intended to cover the child’s food, clothing, and housing, medical care, and education.  

Despite the existence of State guideline formulas, child support payments are one of the most contested aspects of divorce proceedings. Before we look at how to enforce child support payments, it’s important to keep in mind that visitation rights are entirely separate from child support obligations.  

To ask the Court to enforce your child support payments with Contempt, you must make sure that you have a written child support order. This order can be found in your Marital Settlement Agreement or in FL – 342 Child Support Information and Order Attachment. For child support and family support orders it does not matter if the order is based upon the court’s order after a hearing or based upon a stipulation of the parties.   

If there has been a failure of the other parent to pay child support, contempt proceedings are appropriate even if only some part of the child support is paid or if the child support is paid late.

The elements of contempt based on a failure to comply with a child support order differ slightly from other contempt cases. A prima facie case for child support contempt requires (1) a valid court order; (2) the other parent's knowledge of the order; and (3) noncompliance. Once this is established, the person charged with contempt has the burden of showing inability to pay by a preponderance of the evidence. This is different than other contempt cases because the person asking for contempt does not have to show that they know the other party has the ability to pay.

If the Contempt of court proceeding is for a willful violation to pay support, the contempt proceeding must be started no later than three years from the date that the payment was due.  

One important consideration is whether or not a partial payment is being made as opposed to a complete nonpayment.  In situations where there is a complete nonpayment of support you should look into whether your ex is paying other debts such as a mortgage or student loans or if his/her paycheck is being spent on entertainment or a high cost of living. 

It’s important to know that if the other parent doesn’t have the financial ability to make the child support payments due to unemployment or lack of available income, the Court is unlikely to hold the parent in Contempt but they will require that some of the unemployment income goes to support and they may order a parent to participate in job training or to comply with the terms of a seek-work order.   

However, unemployment without proof of attempts to find work is probably is no longer a defense. You can use a parents ability to earn to support a Contempt adjudication. 

Is there anything else I can do? Yes. Contempt is usually a last resort and in California there are other methods of child support enforcement. For example, payments can be withheld from the paycheck of the parent who owes child support, the cost of the insurance may be deducted from the noncustodial parent’s paycheck, a property lien can be put on any personal property and real property, and tax returns can be used to pay past due support.  Additionally, if a parent is behind on child support, the Department of Motor Vehicles may refuse to issue or renew their driver’s license.   

To summarize, in order to pursue contempt for failure to pay child support you need to (1) have a valid order, (2) the other parent has to know about the order; (3) the other parent has to have failed to pay child support.  Just remember that inability to pay is a defense for contempt.  

You can contact me at amanda@gordonfamilylaw.com to learn more. 

What to do if your ex does not pay support or follow visitation: how to file for Contempt.

Has your ex continued to fail to pay child or spousal support? Are you worried that your custody and visitation schedule is being ignored without repercussions? We understand. A motion for contempt is available to both Parties in a case when one Party refuses to comply with an enforceable California family law court order.
If you need to file for Contempt, it is important to learn how the Family Court process works. Family Code Section 290.

Experienced San Francisco Bay Area Family Law attorneys like Gordon Family Law advise clients that contempt motions can be time consuming, expensive, and intricate. Due to the complexity of contempt, Gordon Family Law promotes dispute resolution and recommends Family Court Services mediation as a first step. However, not all parties are cooperative in mediation and you may desire to file a Contempt motion against your ex. 

What do you need to prove? In order to prove contempt, you must demonstrate: (1) issuance of a valid order that is clear, specific, and unequivocal; (2) knowledge of that order on the part of the party alleged to be in contempt;(3) the ability of that party to comply with the order; and, and (4) that party’s willful failure to do so.   

What forms do you need? You must complete an Order to Show Cause and Affidavit for Contempt with Judicial Council Form FL-410 and a an Affidavit of Facts Constituting Contempt—Financial and Injunctive Orders with Judicial Council Form FL-411 or an Affidavit of Facts Constituting Contempt—Domestic Violence/Custody and Visitation with Judicial Council Form FL-412.  

How do you get a hearing? The Order to Show Cause form and Affidavit must be filed and served at least 21 calendar days before the date set for hearing.  The typical procedure is to deliver the OSC to the Judge and then return to that department to pick up the form and obtain a hearing date from the clerk. Next you must serve the other party. For contempt, service must be by personal service – and cannot be via mail or fax. 

What happens at the hearing? At the contempt hearing on the order to show cause for contempt, each party may be represented by counsel. If the other party is not represented, the court may advise your ex of his or her due process rights like the right to counsel and the Fifth Amendment privilege against compelled self-incrimination. Both sides are allowed to present oral testimony and evidence. However, there is no right to a jury trial for contempt in family law.   

What does contempt mean, what is the punishment? If your ex is found in Contempt of court for failure to comply with a court order under the Family Code, then he or she could be sent to jail or required to perform community service. The court will ask for future reports on the compliance of the orders. 
If your ex fails to appear at court, the court may issue a warrant for their arrest. This means that if your ex is pulled over for a traffic stop, they could be sent to jail without a hearing for contempt of court.  

Want to learn more?

Is your ex-spouse a "deadbeat"?

My ex spouse stopped my spousal support payments, what are my options?

My child’s mother does not follow our visitation schedule, how can I get her to comply.

If I have failed to make a child support payment, will I lose the ability to see my children?

Experienced San Francisco County Child Support lawyers will explain to you that in most cases, you will not lose the ability to visit your children. Under California law, both parents of a minor child (i.e., a child under age 18 (Fam C §6500)) have a duty to support that child. Fam C §3900.  However, the failure of a parent to pay his/her child support obligation will not impact the noncustodial parent’s visitation or other privileges granted by a court order. Fam C §3556. 

You will not lose your ability to see your child because the California Family Law system supports and goes to every extent possible to promote the ideal that children have consistent access to both parents. Nevertheless, the failure to pay your child support may result in other civil penalties (such as monetary damages, suspension of your drivers license, revocation of your passport, and wage garnishment) and even criminal penalties like contempt.  For example, California makes the willful failure to provide for a child under the age of 18 a misdemeanor with a maximum punishment of 1 year in the county jail and a $2000 fine. Pen C §270.

If you are having trouble with your payments due to a change in your employment circumstances or other financial strain, you can approach the Court and ask for a modification of your child support payments. The Court uses a guideline scale based on a computer program to estimate child support payments and will grant you relief if you meet certain criteria. If your ex spouse claims that you cannot see your children based on your failure to pay child support, you should consult a good San Francisco Family Lawyer who can help you adjust your You can contact me at Amanda@gordonfamilylaw.com for more information.