The Court ordered your spouse to pay child support. That’s great! Your spouse is not paying it. That’s unforgivable!
You have gone through the normal channels to get your (ex)spouse to pay and yet still nothing. What can you do? Plenty!
The first thing you will have to do is to treat the collection of unpaid child support as a business transaction. Although it is very personal, you cannot treat it that way. Do not let your emotions get in the way of what you must do to collect the money you are owed. There are many reasons why you need to collect the money and they are all important to you and your children. However, remember one thing, in the Courts and judicial system there is only one reason why you should collect the money. That reason is that you are legally owed that money. That’s it. It doesn’t matter that you need the money for clothes, shelter, or food. The Courts just want to know if you are . . .
Hiring an attorney
If you can, it would be much easier on you if you hired an attorney. Most attorneys specialize in certain types of law, the same as Doctors specialize in certain areas of medicine. You would not go to a cardiologist if you had a headache. Therefore, the attorney you hire should probably not be the attorney that did your divorce. What you need now is a debt collection attorney not a family law attorney.
You should interview several attorneys before making your selection. Find out how many of his/her debt collections were for child support. What methods are used to collect the money. Do they subscribe to any credit reporting agencies? Will they obtain liens, judgments and wage executions? Will they issue subpoenas and conduct judgment exams for you? What are his/her fees? Are they on a contingency basis, or on a per hour basis; are there any consultation fees; is a retainer required; if the fee is based on an hourly rate then ask if you could be on a payment plan?
If you cannot afford an attorney or decide it is too costly there is still plenty you can do on your own.
Getting your money
There are several options in getting your money. They all involve work and judgments from the Courts (court orders). The following outlines various type of judgment where you will be able to get your money. Don’t be afraid to use these options because after all it is your money. The money you need to feed, clothe, and provide a place for your children to live.
This is where by court order your (ex)spouse’s employer must deduct a certain amount of money on a continuous basis from his/her paycheck and forward it to you or a state agency. The employer must comply by law to this order. Under federal law, a wage withholding must be permitted for anyone that has a child support order where the payments are 30 days past due or if three consecutive payments have been missed. The amount that can be deducted is limited to 50%-65% of the paycheck depending on the marital status, dependents, and arrearages.
This is different from wage withholding. A wage garnishment is an order to deduct a one-time lump sum amount. Depending upon the amount you are owed and the size of the paycheck your (ex)spouse receives, this may or may not be the right option for you.
Writ of Garnishment – Personal Property
You can garnish any liquid (cash) asset that your (ex) spouse owns. Liquid assets would include savings and checking accounts, CD’s money markets, stocks, IRA’s etc. A writ of garnishment is a court order whereby a third party holding the liquid asset must turn over the money to the court. You will need a writ of garnishment for each institution you will be presenting it to. For instance, if you are owed $5,000 and your (ex) spouse has $4,000 in as savings account in Bank A, and $1,500 CD with Bank B, then you would need a writ of garnishment for Bank A in the amount $4,000 and another writ of garnishment in the amount of $1,000 for Bank B. Just like a wage garnishment, a writ of garnishment is one lump sum deduction. If there are not sufficient funds in the account when the writ is executed, the institution CANNOT deduct any future deposits made to that account.
Writ of Execution – Personal Property
With a Writ of Execution for personal property possessed by your (ex) spouse you take away that personal property. It can be both time consuming and costly. You must go to the family clerk in your county. You will fill out a Writ of Execution form and pay a nominal fee. The Writ of Execution is issued to the sheriff along with Sheriff’s Instructions specifically detailing the items to be seized. The costs involved include a fee to the sheriff for seizure of the property, a bond must be posted based on the value of the property (usually 1-3%); the cost of any moving van or tow truck used to remove the property, a fee for storing the property until it can be sold at a sheriff’s sale as well as the cost of the sale. You will only get your money when the items are sold. The cost of the sale will be deducted from the proceeds, but the other money is due up front. Not so easy if you’re already strapped for funds.
Writ of Execution- Real Property
If your (ex) spouse own real estate you can get a writ of execution preventing that person from selling the property until you are paid what is owed you first. You may be able to force the sale of the property. This should not be done without using and attorney and researching exactly what you will end up walking away with.
Many people believe that if they transfer assets into someone else’s name they are off the hook. This is illegal if it is done to intentionally avoid paying you. If this has been done you can file a motion that is called a creditors bill. You file this motion against the person in possession of the assets to prove that there isn’t a valid reason for the transfer, and it was done to avoid paying you. Once that is proven you can get a judgment lien and have the sheriff seize the property. Again, his should not be done without using and attorney and researching exactly what you will end up walking away with.
If your (ex) spouse owns a business that is open to the public and has a cash register you can file a sheriff’s instruction for a till tap. The sheriff with go to the place of business and empty the cash register. It is best to wait for the busiest day of the year to make sure that you will receive as much as you can up to the amount you are owed.
Subpoena’s and Depositions
Even if you have a judgment against your (ex) spouse you may not be able to get all the information you need to collect on it. If this is the case, you can subpoena that information. A subpoena is a court order that says the person with the information you want must answer your questions. A subpoena duces tecum is used if you want the person to supply you with documentation such as account records etc. The good thing about a subpoena is that if the person doesn’t comply they must answer to a judge. Most people who receive subpoenas comply with them and will send you the reque
sted documents or answer your questions.
If the subpoena doesn’t work, you can have a deposition. During a deposition you have the opportunity to ask the questions directly. A deposition is a legal proceeding. It does not have to be held in the courthouse, however you will need a court reporter present to record exactly what is said during the deposition.
Contempt of Court
If your (ex) spouse is court ordered to pay child support and aren’t they can be held in contempt of court. You will have to file an Order to Show Cause which makes the (ex) spouse go to court explain to the judge why they are not following the court order. After enough times in front of the judge, they may be sent to jail and not released until payment is made. However, payment in full is not always guaranteed in order for the deadbeat to be released.