Federal and state law requires that a noncustodial parent pay child support unless there are special circumstances where a judge waives this requirement. Courts will usually collect child support by garnishing a noncustodial parent's wages. In some instances, your ex-spouse may work under the table or receive cash payments, which makes it difficult for the court to enforce a wage garnishment. If that is the case, there are steps you can take to try to get child support that is owed to you.
Filing an Enforcement Motion
If your ex is required to pay child support and he stops paying, or pays less than he should, you can file a motion with the court. This is commonly called an "enforcement motion" or a "motion to enforce child support." In your paperwork, you explain why you believe your ex is working under the table, which means he is working but not accurately reporting his income to the government. This frequently occurs when employees work for cash instead of receiving paychecks. Include a copy of your child support order so the court can see how much back child support your ex owes. The court will give you a hearing date when you can go before a judge and present your case.
Proving Your Ex Is Working Under the Table
It may be possible to prove that your ex is working under the table. You can hire a private investigator to follow your ex and collect evidence that he is working on a regular basis. Also, after you file an enforcement motion, the court may permit you to subpoena the company where your ex works and require the company to provide copies of payroll statements. In some instances, you may even be able to subpoena your ex's bank statements to show regular cash deposits. You need the court's permission to issue these types of subpoenas. Occasionally, the court will issue the subpoena on its own. To be certain that you are not breaking any laws or violating your ex's privacy, it is best to seek out the services of an attorney if you want to prove your ex is not reporting all of his income.
If you are unable to provide evidence that your ex is working under the table, the court can still impute income to him. This means the judge will determine an annual income that she thinks your ex is capable of earning and will require him to pay child support based on that income. The court will also impute income to your ex if he is unemployed but could be working or if he is underemployed, meaning he is earning some income but should be earning more. To impute income, the court will review your ex's educational background and work history to determine what types of jobs he may qualify for. If all else fails, the court can at least impute minimum wage to your ex and then calculate child support. The bottom line is, except in very limited circumstances, a noncustodial parent will be required to pay child support whether he is actually working or not.
Penalties for Not Paying Child Support
If your ex does not pay child support, the court can impose penalties to try to discourage this type of behavior in the future. The court can report your ex's past due child support as a bad debt to credit reporting agencies, making it difficult for your ex to get approved for loans in the future. The court can also suspend your ex's driver's license and prevent him from obtaining a passport. You can also place liens on your ex's property so that if he ever sells it, you may receive some of the profits. The Internal Revenue Service can also intercept your ex's tax refund and use it to pay the past due child support owed to you. In extreme circumstances, the court can have your ex arrested for failing to pay child support.
References & Resources
- Marrison Family Law: Common Tactics of Parents Not Paying Child Support
- Marrison Family Law: Can Your Colorado Child Support Attorney Prove Contempt of Court?
- Indiana Department of Child Services: Income Withholding
- Families Online Magazine: Collecting Child Support from Under the Table Eaners
- DivorceNet.com: Imputing Income for Child Support
- Washington State Legislature: Standards for Determination of Income
- U.S. Department of Labor: Wage Garnishment
- Maryland State Courts: Motion to Modify Child Support
- Jupiterimages/Creatas/Getty Images