A court order in a divorce, separation or paternity action can instruct one party to make ongoing payments to the other, in various ways. Common examples are child support payments and spousal support (maintenance payments). Unfortunately, it is common for a party entitled to receive child support or maintenance to not receive payments, as ordered. Support arrears can cause significant stress, inconvenience and economic hardship to the person entitled to a child support or maintenance payment. If your court order says that someone is supposed to pay support, but the other party does not pay or has not paid you as ordered, you have a few options at your disposal, to address the problem.
When a party is behind on providing you child support or maintenance payments, a good first step is to contact the person who is supposed to be making payments, to let them know that there is a problem and to inquire as to when payment will be made. It is important to do this in writing, such that there is a record of the communication attempt and of any response or acknowledgement from the payer. Sometimes, the problem is easy to fix: the payer may need to talk to or provide the court order to his/her payroll department, to get a new support order set up. Or, the order may specify that the payment is to be made to you directly, and the payer has forgotten to pay or “the check’s in the mail.” If something more complex is going on, letting the payer know that something is wrong also puts her/him on notice that you are aware of the issue, and that you intend to take action to correct it.
If the payer doesn’t know what is wrong or if he/she is uncooperative, it may be necessary to contact the child support agency. Look at your court order, to make sure that the child support or maintenance payments are supposed be made through the agency. Child support and maintenance payments are both typically overseen by the Wisconsin Department of Children and Families. Most support orders direct child support or spousal support payments to be automatically deducted from the payer’s paychecks, each pay period (known as “income assignment”). In this way, the agency is able to document exactly how much money is being paid out, each month. The child support agency will have a record of all missed payments and can verify the amount of the arrears owed you. When support arrears get to a certain level, the child support agency may take action on your behalf; they have the ability to follow up with the payer, file motions with the court, garnish the payer’s paychecks, seize tax refunds and put liens on vehicles, until the arrears are satisfied.
Unfortunately, when someone hasn’t paid child support or spousal support as ordered, sometimes it is necessary to involve the court and to litigate the issue. If you are owed child or spousal support, you have the ability to file a motion with the court, to hold the paying party in contempt. A contempt motion consists of the notice of motion, the motion itself and an affidavit (sworn statement) that describes the problem and asks the court for specific relief. You may ask for reimbursement of any attorney fees you have had to incur, as a result of bringing the motion to court. When a motion like this is filed, the court will schedule a hearing on the motion. At the hearing, you will have a chance to present evidence and testimony, to the Commissioner or Judge, related to the other party’s failure to make support payments. A finding of contempt means that someone has willfully disobeyed a court order and that their actions were not reasonable. If the court agrees that the paying party is in contempt of court, the Judge or Commissioner may order the payer to pay you several lump sums or the entirety of what is owed by a deadline, or the payer could face fines and jail time.
NOTE: If you are owed support, it is very important that you do not discuss the issue with your child(ren). Discussing these matters with children can be very emotionally damaging to them, as they could feel caught in the middle, guilty, or conflicted regarding the other parent. These are adult issues, and parents should do whatever possible to shield children and to avoid involving them in the other party’s failure to pay and/or the resolution of support arrears.
Our firm handles these issues on a very frequent basis. If you believe that someone owes you money for unpaid child support or spousal support (maintenance), feel free to call us, to set up a free half-hour consultation.