Conflicts and Penalties-Module 5 of 6

Module 5: Conflicts and Penalties

Domestic relations cases do not always go smoothly. From parties hiding assets to refusing to pay child support, there are many obligors who do not live up to their legal responsibilities to obey court orders to pay support.[1] This module will explore what can happen to people who do not pay their court-ordered child and spousal support. We will also look at some state court decisions that provide examples of enforcement actions.

Penalties for Non-Payment of Child Support

Arrearage Offset Payments

Federal and state governments can withhold government payments from an obligor who has child support arrearages under certain circumstances. This is called an “offset.” The government is empowered to enforce and administer offsets under the Debt Collection Improvement Act of 1996.[2]

In an offset, money owed by the government to the obligor is given instead to the obligee, or to the obligee’s state child support agency. The most common offset is for income tax refunds, but various laws and rules allow for a variety of other offset payments as well. Offsets are managed on the federal level by the federal Office of Child Support Enforcement. Each state sends a list of obligors who owe child support arrearages to this office. The office then scans the appropriate federal data bases to see if the obligors are owed money by the government. If so, the offset process is engaged. The agency creates a Federal Offset File, which includes the parties’ names, Social Security numbers, and child support debt amounts owed by the obligor. That file is then used to attach assets. 

Tax Offsets

State laws and administrative procedures[3], along with Internal Revenue Service regulations and federal administrative proceedings[4], allow for the collection of child support arrearages through attaching an obligor’s income tax refund money with a tax offset.

Federal tax return money is offset through a combination of state and federal regulations and laws. First, a state child support enforcement agency must have reported an obligor’s arrearages to the federal Office of Child Support Enforcement. Different states have different thresholds for such reporting. Federal regulations require reporting arrearages of $150, or $500 for obligees who receive Temporary Assistance for Needy Families.

Once the Office of Child Support Enforcement receives those arrearage reports, the office sends that information to the Internal Revenue Service. The IRS can take those amounts from the obligor’s tax refunds and send the money to the state’s child support agency through the Treasury Department’s Bureau of Fiscal Service, which issues tax refunds. The money is then disbursed by the state agency appropriately.

This process requires that the obligor be notified of the coming offset at least 60 days before the refund would have been processed for payment. The obligor spouse will have that amount of time to clear the arrearage. Note that this tax offset is only for child support and not for spousal support. Note also that community property states may handle tax refunds differently.

Innocent Spouse

There are situations where an obligor parent remarries and the new couple files a joint tax return. It would be unfair for the new spouse to have her or his tax return offset. The non-obligor new spouse is called the “innocent” or “injured” spouse under those circumstances. When that happens, the innocent spouse can file an IRS Form 8379 with the joint tax return and will get back the innocent spouse’s portion of the tax refund.

Offsetting Other Federal Payments

Besides income tax refund money, other federal government payments can also be offset under the law. These can include federal retirement benefits, payments to private vendors who do government work, and even relocation and travel reimbursement expenses for federal workers. There are, however, types of federal payments excluded from offsetting, including Veteran’s Affairs disability payments, federal student loans, some Social Security payments, railroad retirement payments, black lung payments, Supplemental Security Income and others.

Processing these other offsets requires the same administrative procedures as offsetting income tax payments, although the requirements are slightly different. The federal Child Support Enforcement office uses the state’s arrearage registration to scan the federal data base to see if any federal payment is owed (as with income tax). This is different from offsetting taxes in that the arrearage under the administrative offset program can be applied for any arrearage of more than $25 that is owed for at least 30 days. Also, the notification requirements are somewhat different.

State Punishments for Non-Payment of Support

States also have methods of recovering arrearages and punishing or sanctioning non-paying obligors. States can vary in their punishments for non-payment of support, but here are some of the methods used. Many of these parallel federal-level punishments on the state level. States can have different limits on the amount owed or the amount of time the obligor is in arrears before these sanctions are imposed.

If the obligor, obligee, source of payment and the court that has jurisdiction of the case are all in the same state, then the state support enforcement agency can handle all the paperwork involved. If any of those elements are out-of-state or involve federal sources of income, then the federal penalties we discussed earlier can be engaged.

Contempt of Court

A court has the power to enforce its own orders. Often, an arrearage case begins with the obligee filing a Motion for a Citation on Contempt against the obligor. The court can also issue a bench or arrest warrant for the obligor. Once the obligor is in court or is in default for not responding or for not coming to court, the proceeding a “show cause hearing” is initiated. If the obligor is found in contempt of the court’s support order because of non-payment, the court can then punish the obligor in a variety of ways.

Some of those punishments are statutory, and some are discretionary. A court’s contempt power runs parallel to the state’s support enforcement’s power and the federal child support enforcement power. That means that an obligor in arrears can be hit from all three directions at the same time.

Civil Contempt

One unique power that a civil court has to enforce its own orders is called “civil contempt.” This is a very unusual punishment and is rarely used. In the case of support enforcement, it is historically only used when the obligor deliberately refuses to comply with a support order. Under a court’s civil contempt power, the judge can send the obligor to jail until the obligation is paid. Of course, the obligor can’t make any money in jail, which means that there are times when the obligor could be in jail for a long time.

One famous case involved a lawyer who refused to pay support to his ex-wife. He intentionally spent years in jail rather than placing money into an account for her as obligated. H. Beatty Chadwick, a Philadelphia-area (now ex-) lawyer, was released in 2009 after 14 years in jail with no charges ever being filed.

Criminal Charges

All states have some form of criminal punishment for obligors who are in arrears. These statutes vary widely, but most of them invoke criminal charges only when there is an arrearage which was deliberately created by the obligor ignoring the support order for some period of time. Some states allow only misdemeanors charges, some allow only felonies, and some start with misdemeanors and graduate to felonies under certain circumstances. Non-payment must generally be “willful” for there to be a criminal conviction for non-payment of support.[5]

License Suspension

All states have some sort of restriction on driving privileges that can be invoked for non-payment of child support.[6] Some states will allow work driving privileges[7] or ease license restrictions if the obligor pays a certain percentage of back support.[8] While the emphasis may be on suspension of the obligor’s driver’s license, state laws do not make a distinction between the licenses that can be suspended. Licenses that can be suspended include medical, law and other professional licenses, and even hunting and fishing licenses. Although these licenses are granted by states, the federal government can also suspend driver’s and professional licenses through the Office of Child Support Enforcement.

Income Withholding

            A state can garnish an obligor’s wages. Both federal and state laws require employers to honor these garnishments. In addition to wage withholding, states can also garnish Social Security payments, unemployment payments, retirement payments, insurance claims, worker’s compensation claims and other forms of income from a child support obligor who is in arrears.  Some of those laws, though, have limits on the amount that can be garnished.

State Tax Refund Offset

State tax refunds can be offset in the same way as can federal tax returns.

Pension Account Attachment

A state court can impose a Qualified Domestic Relations Order on a qualified pension to satisfy support arrearages. This attaches monthly pension payments in favor of the obligee and can also sometimes be converted to a single payment.

Surcharge

A court can impose a small surcharge on arrearages, adding one or two percent of the amount owed to the obligation as a penalty.

Credit Reporting

States can report support arrears to credit bureaus. Some states mandate this reporting after support is in arrears for a certain period.

Liens and Levies

State support agencies can be empowered to place liens on real or personal property, or levy against funds held by the obligor.

Incarcerated Obligors

In the 2011 case, Turner v. Rogers, the United States Supreme Court decided a case based on a civil contempt jail sentence given to a child support obligor.[9] Its decision potentially opened the door to a whole new group of child support regulations. The obligor, Michael Turner of South Carolina, had been jailed six times for non-payment of support over the course of six years for anywhere from one day to eight months. The question before the Supreme Court was whether the defendant was entitled to legal counsel in a civil contempt case.

The Court held first that the defendant was not entitled to legal counsel in a civil contempt case or any civil case as a matter of constitutional law. But the Court also ruled that the state had an obligation to provide Turner with an administrative alternative of some kind, or “substitute procedural safeguards” that might resolve the case without the defendant facing jail time. Justice Clarence Thomas dissented in the case, arguing that allowing alternative administrative proceedings may make it more difficult to collect child support. The Supreme Court has also ruled that obligors facing criminal contempt non-support charges are not entitled to a jury trial.[10]

The Law Since Turner v. Rogers

The National Child Support office published a set of updated mandatory rules in late 2016 for states to follow in the wake of the Turner v. Rogers case. The support office broke incarcerated obligors into two groups: those who are in jail for non-payment of support and those who are in jail on other charges but who also have open support cases. Many people in the second category have no idea what their rights are or even what is going on in their support cases and do not know how to respond to changed circumstances in those cases.

The updated rules regarding civil contempt incarceration for indigent obligors include the requirement to create substitute procedural safeguards under Turner. The rules regarding obligors incarcerated for other offenses mandate that states create procedures to ensure the right of all parents to seek reviews of their order when their circumstances change. This can include suspension of the support obligation when the obligor is incarcerated.[11] The National Conference of State Legislatures has developed model legislation for states to follow in response to these rules.

Many states also have diversion programs or other alternate means of working with obligors short of facing jail time.[12] Some jurisdictions offer amnesty programs allowing release or jail avoidance in exchange for payments.[13]

Samples of State Court Decisions

State courts make decisions on child and spousal support cases all the time. Most state supreme courts and federal Circuit courts have decided criminal child support cases. Let’s look at a few recent cases of interest.

Ohio

A recent Ohio Supreme Court case made it more difficult for obligees in that state to collect child support.[14] In that case, the obligor fell behind on child support and still had an arrearage when his children were emancipated. After they were emancipated, the state brought a criminal action against him for the arrearages. The Ohio Supreme Court held that under Ohio law,[15] the support obligation was present-time only. That meant that the arrearages could not be subject to a criminal action after the children were emancipated, and the state was left with a civil remedy only. That case affected every such case in the state.

Minnesota

An obligor in Minnesota successfully got his conviction for non-support overturned by the Minnesota supreme court in 2014 by challenging the definition of two words in the state’s support statute.[16] Minnesota law stated that each parent had to provide both “care” and “support” to their children. The court decided that “care” and “support” were two different concepts, and that a criminal conviction had to be based on the defendant doing neither. It defined “support” as financial and “care” as personal and held that the state did not prove that the defendant did not care for his children, even when he failed to make support payments. Therefore, his criminal conviction was overturned.

Texas

A Texas man, Gabriel Cornejo, was ordered to pay child support arrearages for a child that was not his. He was adjudicated the father under Texas law[17], but without having taken a blood test. Years later, a DNA test found that he was not, in fact, the father of the child. The child support court nevertheless ruled that Cornejo owed child support for the time between the adjudication of parentage (2003) and the DNA test (2017) amounting to $65,000. The case is pending.

Connecticut

A Connecticut court ruled that an obligor ex-husband had to continue to pay child support to the obligee ex-wife, even after the children moved out of her house and in with him.[18] The appellate court held that that activity did not constitute a change of circumstances that would change the support order. The court conceded that its decision required “analytical murkiness.”

In our next and final module, we will look at the nuts and bolts of determining the amounts for spousal and child support.