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What To Do If Your Ex Doesn’t Pay ...

child support

Many people do not know that under Colorado law child support is actually consider the child’s right – it is something the child, not the parent receiving child support, is entitled to. When there is a Court Order requiring a party to pay child support and that party does not comply with the same the Court takes this very seriously. This article will delve into potential steps you can take if you find yourself in this situation.

1 – Make sure there is an Order regarding child support

Some parties who were never married and are now separated with children formulate an informal child support arrangement. If this is the case, your options are more limited if that paying party suddenly stops paying. Accordingly, make sure you go through the steps of putting a child support Order in place. You can do this by filing a Petitioner for Allocation of Parental Responsibilities with the Court which, along with establishing a Parenting Plan, will also establish child support. You can go through the state and contact Child Support Services to help you establish child support. Either way, the first step is making sure you have a valid Court Order regarding child support.

2 – Motion for Entry of Support Judgment

A Motion for Entry of Support Judgment is a motion which outlines to the Court that there is a Support Order, that the other party has stopped paying/is delinquent, and it allows you to request the Court enter a judgment against that party for the amount they are delinquent plus interest. The Colorado Revised Statutes allow the moving party to add 10% annual compounding interest on top of the outstanding child support.

Note, make sure you “confer” with the other party before filing this Motion. The Court requires you to tell the other party that you plan to file the Motion and get their position on whether they agree or disagree with you filing the same. Essentially, the courts want to encourage parties to attempt to settle the issue before pursuing litigation.

Further note, if the party who is supposed to be paying child support continues to not pay child support for months after you file this Motion, that will not automatically roll into the Court’s judgment against that party. It requires further separate Motions for Entry of Judgment accounting for that new amount of delinquent payments as well.

If/when the Court grants the Motion, this will sometimes be enough to prompt the other party to comply and pay-up. However, if the Court’s Order does not have this effect, there are other step you can take.

  1. Record the Judgement

If you record the judgment, then that judgment will act as a lien on the other party’s property, to the extent that he or she owns real property. Accordingly, if they ever try to sell that property or it is foreclosed upon, your lien will get paid out of the proceeds. However, this process doesn’t provide the kind of quick pay-out parents often needSometimes a better alternative is usually garnishing that party’s income and/or levying their bank accounts.

  1. Garnish the Judgment from the owing Party’s Wages or Bank Account

You can use a judgment against a party for delinquent child support to garnish that

amount from the other party’s wages or levy their bank account, if you know who that party banks with. See below for further details on the same.

3 – Income Withholding Assignment for Support and Garnishment

Often, a Court Order regarding child support provides for child support to be paid through the Family Support Registry. The Family Support Registry is an organization that administers and facilitates the payment of child support to and from the appropriate parties, and keeps a record of the same. If the Support Order requires payment through the Family Support Registry, both parties will need to cooperate and take steps to set that up, and it is useful for keeping track of child support payments made, when they were made, what amount was paid, and so forth. If your Support Order does not provide for the immediate activation of an account with the Family Support Registry, there are still steps you can take.

When there is an existing Support Order, you can use that to obtain an Income Assignment. This will result in the other party’s wages being garnished, i.e. the amount of child support is taken out of their paycheck and paid to you, often times via the Family Support Registry. However, there are limits to the amount of income that can be garnished. Our attorneys understand these limits and requirements and can assist you in garnishing a payor’s wages for child support. Further, if you have a granted Motion for Entry of Judgment, you can also have that amount garnished from the other party’s wages via Income Assignment as well, subject to the same limitations.

Generally, the procedure for this is as follows: file an Income Withholding Assignment within the case matter in which the child support order was established; request a certified copy of the Support Order and/or Order regarding the Motion for Entry of Support Judgment from the Court, and sending the same, along with a copy of the Income Assignment to the owing party’s employer.

Further, if you know who the other party banks with, you can use a Support Judgment to levy funds in the other party’s bank account to satisfy the judgment against them. Levying a bank account is also subject to certain limitations on the amounts that can be levied so it is important to understand these limitations before seeking a bank levy. In short, you initiate this by serving a Writ of Garnishment on the other party’s bank and filing the same with the Court, however, the process can become complicated depending on the character of the funds in the accounts. It is important to speak with an educated attorney regarding this process.

4 – Motion for Contempt Citation

Finally, an option to consider if your ex is not paying their court ordered child support is to file a Motion for Contempt Citation.

To win on a Motion for Contempt Citation, you have to be able to show/prove the following factors:

  1. There is a valid Court Order, i.e., a Support Order.
  2. Your ex had knowledge of the Order, i.e., they participated in the litigation which resulted in the Order, signed an Agreement regarding child support, has made adequate payments in the past, and so forth.
  3. Your ex violated the Court Order, i.e., they stopped paying or are not paying as much as they should
  4. Your ex has the present ability to comply with the Court Order, i.e., he can afford to make the required child support payments
    1. Note, this factor is what often times makes Contempt a tricky path forward. If your ex can show that he cannot afford to make these payments, this would be a valid defense to a Motion for Contempt Citation.

Keep in mind, there are two different kinds of contempt – remedial and punitive.

Punitive seeks to punish your ex who has not paid, whereas remedial seeks to rectify the wrongdoing. Punitive contempt requires a showing of the factors listed above, along with a showing that your ex has willfully refused to comply with the Court Order and such willful disregard offended the dignity of the Court. Further, since punitive contempt is quasi-criminal, the burden of proof is higher. For example, whereas remedial contempt requires you to prove each of the factors by a preponderance of evidence (more likely than not), punitive contempt requires you to prove the factors beyond a reasonable doubt (the Court cannot reasonably doubt any of the required allegations you are making against your ex).

Further note that the remedies for punitive and remedial contempt can differ and it is best to consult with an attorney regarding which route is best for you and your case.

Going through the steps of making your ex pay-up on child support can be overwhelming, frustrating and confusing. We at Solutions Based Family Law are here to help. Call 720-420-3610 to schedule a consultation with one of our attorneys today.