Father not paying child support what can I do? This is a common question asked by a parent who takes care of the child.
Father not paying child support what can I do – ENFORCEMENT in general.
The courts have several ways to ensure child support is paid. All remedies available for the enforcement of civil monetary awards are also available for the enforcement of family support obligations. Many of these remedies are broader when applied to support enforcement, such as in the wage garnishment arena, and additional remedies exist for support enforcement that are not otherwise available for enforcement of orders or judgments unrelated to support.
Effective enforcement may require substantive crossover with statutory references and remedies found in the Probate Code, Bankruptcy Code, Civil Code, Commercial Code, and Corporations Code and decisional law based thereon. Decisional law regarding the enforcement of money judgments, particularly in the context of family law, is quite sparse and many important cases are yet to be published.
The broad authority for enforcement of support orders is reflected in Family Code 290 , which permits a judgment or order made or entered under the Family Code to be enforced by “execution, the appointment of a receiver, or contempt, or by any other order as the court in its discretion determines from time to time to be necessary.”
Family Support is Enforceable to the Same Extent as Child Support
If I have a problem with the father not paying child support what can I do about the child support as well as the family support? By statute, a family support order is enforceable in the same manner and to the same extent as a child support order. Family support orders and stipulations can combine child and spousal support, rather than having separate orders for each component of support if the amount of the order is adjusted to maximize tax benefits for both parents.
Calculation of Support Arrearages
In most cases, a formal determination of support arrearages is unnecessary in order to obtain a writ of execution or virtually any other enforcement remedy. Nonetheless, correct accounting and allocation of payments are essential in order to arrive at the correct amount due and to minimize the likelihood of an obligor successfully quashing a writ of execution.
Support payments are due when ordered paid, and interest accrues at the legal rate the day after an installment is due and missed. The interest that accrues on long-overdue installments can be quite substantial and often exceeds the amount of principal originally owed. When there exists both child and spousal support obligations, and in consideration of Family code, which requires a support obligor to pay child support before paying any debts owed to creditors, logic dictates that a payment made by the obligor without a specific designation regarding allocation should first be applied to child support.
Father not paying child support what can I do – PROPERTY SUBJECT TO ENFORCEMENT
In a situation of the father not paying child support, what can I do to have a property to be subjected to enforcement? You may ask. There are two kinds of property subject to enforcement when father is not paying child support. These properties can be categorized as follows:
Debtor’s Property in General
Except as otherwise provided by law, all property of a judgment debtor is subject to enforcement of a money judgment. This includes the debtor’s separate property and his or her interest in community property. Nearly all remedies available to the enforcement of a civil money judgment are available for the enforcement of a support judgment because a support judgment is a subset of a money judgment. A notable exception is that the garnishment of a non-debtor spouse’s wages, which would be available to a civil money judgment creditor is never available for a support obligation of a prior marriage. This is because, support instalments are deemed to have accrued before a new marriage, regardless of their actual date of accrual.
Unless otherwise provided by law, property of a judgment debtor that is not assignable or transferable is not subject to enforcement of a money judgment. Property that is not subject to enforcement of a money judgment may not be levied on, or in any other manner applied to the satisfaction of, a money judgment. If such property has been levied on, the property may be released using the claim of exemption procedure.
Community Property
In the case of a father not paying child support what can I do about the community property enforcement? A debtor’s interest in community property is subject to enforcement as provided. This is of relevance to a support creditor whose debtor is or has been involved in a dissolution and later marriage (i.e., following the marriage in which the support obligations arose). As a general rule, the community estate of a marriage is liable for the debts incurred by either spouse before or during the marriage, regardless of which spouse has management and control of the property, and regardless of whether one or both spouses are parties to the debtor a judgment for the debt. In general, a community property presumption extends to “all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in [California].” On the issue of when property that has been awarded or confirmed to a spouse on dissolution becomes the separate property of that spouse.
Father not paying child support what can I do – EXEMPTIONS for enforcement
In the case of a father not paying child support, what can I do about property exempted from enforcement? In the context of enforcement of judgments, the property can fall into one of two categories: property exempt on the basis of a proper claim, or property exempt without making a claim. Property considered exempt without making a claim, or that portion of the property that is exempt without making a claim, should simply never be touched by a creditor. If it is, it should be returned as conveniently as possible to the debtor or to the source from which it came. In contrast, property that is merely exempt on the basis of proper claim may or may not be applied to the satisfaction of a debt.
Property Considered Exempt Without Making Claim
If a property is exempt without making a claim of exemption, the property is not subject to being applied to any judgment for child, family, or spousal support. The following are examples of the types of property that are exempt without a judgment debtor making any claim and thus are not subject to enforcement for the satisfaction of a money judgment:
- Proceeds of up to $2725 from a single vehicle sold at an execution sale (but if there are multiple vehicles, claims must be filed);
- A deposit account containing only Social Security benefits that are directly deposited by the government or its agent (but only if the total amount in the account does not exceed $2875; above that amount, a claim must be filed);
- Social Security funds not directly deposited into the debtor’s account may be claimed as exempt if the account contains only Social Security benefits;
Property Exempt on Basis of Proper Claim
Certain types of property are potentially exempt from judgment enforcement, but only if a judgment debtor files a proper claim of exemption. Below are examples of the types of property that may be exempt on the basis of a proper claim:
- Any combination of the following regarding the debtor’s motor vehicles, up to a total value of $2725:
- The aggregate equity in motor vehicles;
- Proceeds of an execution sale of motor vehicles;
- Proceeds of insurance or other indemnification for loss, damage, or destruction of a motor vehicle;
- Household furnishings, appliances, provisions, and personal effects;
- Materials for repair or improvement of a residence (up to $2875);
- Jewelry, heirlooms, or works of art (up to $7175);
- Health aids, when reasonably necessary to enable the debtor or his or her spouse to work or sustain health, and prosthetic or orthopedic appliances; and
- Tools of trade (up to $14,350)
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