Okay, as the result of either a paternity action, a dissolution, or a petition being filed with the Department of Revenue, you now have a child support obligation. If the Department of Revenue was involved prior to the dissolution or paternity action, they are not suddenly out with the filing of a petition in either one of those cases, but that discussion is for another blog post. Today, it is about what happens if you do not pay your obligation (and do not do anything to get your ordered obligation modified).
The first step in the contempt hearing is a motion for contempt is filed. This is typically done by the Department of Revenue, but could also be filed by the custodial parent (the parent receiving the child support is called the custodial parent for purposes of child support hearings) or their attorney. Once the motion for contempt is filed, it is best to contact an attorney ASAP. If a contempt motion is filed, it does not mean that you have just missed one or two payments. Contempt motions typically are not filed until a person is thousands, if not hundreds of thousands of dollars behind in child support. Therefore, it is imperative that you contact an attorney as soon as you become aware that a contempt motion for child support has been filed so the attorney can review the case and best prepare/advise you of the likely outcome.
A hearing will be set on the contempt motion and at that hearing, the court is looking at two main things: willfulness of the failure to pay and a purge amount (do not worry, I will discuss that more shortly). At the hearing, it is typically the parent who is obligated to pay, an attorney for the Department of Revenue, and a hearing officer. If the obligated parent has an attorney, that person is also present. The first thing the judge will ask is whether or not the obligating parent is consenting to or arguing against willfulness of the failure to pay child support. If the parent is contesting (or arguing against it) willfulness, the Department of Revenue attorney will ask the parent questions regarding any assets they may have. They will ask about whether or not they are working, whether or not the parent has been seeking employment (if they are not working), how much they make each month, whether or not they have a car, house, furniture, etc and the value of each of those things.
The purpose of asking these questions is to help the court determine whether or not the obligating parent had the ability to pay even the smallest amount towards their child support and how much money they could have if they sold or got rid of anything that the court does not deem as necessities. After the department asks questions, the court has largely made up their mind about willfulness, so you or your attorney asking additional questions or evidence is only proper if there is a legitimate reason that you have not paid anything towards your child support. Determining whether or not the court would deem it as legitimate or not is something that the attorneys at Jordan Law can help you with, as we have attended these hearings and are knowledgeable on the law regarding child support hearings, which is why it is very important that you give the lawyer plenty of advance notice and adequate time to prepare for the hearing.
If the court finds that the failure to pay was not willful, then the hearing is over and the court will direct you as to the next step (meaning when to pay your next support payment). However, if the court finds that the contempt was willful (which they typically do), they will find you in contempt of a court order (the order to pay child support) and move to the next step – the purge. This is typically the most important step to clients because this is the step where the court determines whether or not you go to jail for contempt. Yes, there is a possibility that you can go to jail for failure to pay child support. After the judge finds you in contempt, the next determination is the purge amount. A purge amount is an amount you are ordered to pay in a lump sum, the same date (and essentially at the same time) as the hearing towards your support. If you are unable or unwilling to pay the amount ordered by the judge, you will likely be taken into custody and go to jail until you or your family/friends are able to come up with the purge amount.
Therefore, prior to a hearing on contempt, it is not only important for you to talk to an attorney about the process and a likely purge amount, but also your friends and family if you are unable to pay an amount in excess of your monthly support at the time of the hearing. An attorney may be able to give you an estimate of the purge amount and depending on the judge and the amount you owe, may be able to negotiate a lower purge amount, but an attorney cannot remove this step of the process. Once you are found in contempt, you are expected to come up with the lump sum that day. If you are able to pay the purge amount that day, you are able to go home, but it does not resolve the case for you. The judge will tell you when your next child support payment is due. If you do not pay it, you will be right back before the same judge at another contempt hearing. If you are financially unable to pay the amount, you must file a petition for modification or reduction of the child support obligation.
The take away – pay your support on time, even if you have to pay smaller amounts for a period of time. Ask for a modification if you cannot afford your payments. IF you have a motion for contempt filed against you, contact us ASAP. We can help you, but we need time to make sure that we can get the best result for you both at the hearing and moving forward.