If you owe back child support, you could face jail time. Here's how this works.
Failure to obey a court order is called contempt of court. If you owe unpaid child support, the other parent can ask for a hearing before a judge and ask that you be held in contempt of court. You must be served with a document ordering you to attend the hearing, and then must attend and explain why you haven’t paid the support you owe. If you don’t attend, the court can issue a warrant for your arrest. Many courts do issue warrants, making county jails a resting stop for parents who don’t pay child support and fail to show up in court.
If you attend the hearing, the judge can still throw you in jail for violating the order to pay the support. And the judge might do so, depending on how convincing your story is as to why you haven’t paid.
To stay out of jail, go to the contempt of court hearing prepared to show that you have not deliberately disobeyed the court’s order to pay child support. You may have to convince the judge that you’re not as irresponsible as it appears. Preparing evidence is a must.
Your first step is to show why you didn’t pay. If you’ve been out of work, get a sworn statement from your most recent employer stating why you were let go. If you went job searching but had no luck, provide records of when you interviewed or filled out an application and with whom you spoke. Remember: Disputes with the custodial parent about custody or visitation are never an acceptable excuse for not paying child support.
Next, you must explain why you didn’t request a modification hearing when it became evident that you couldn’t meet your support obligation. For example, if you’ve been in bed or otherwise immobilized—depressed, sick, or injured—get sworn statements from all medical professionals who treated you. Also, get statements from friends or relatives who cared for you. Emphasize your most compelling arguments (for example, you couldn’t get out of bed), but never lie.
If you spoke to lawyers about helping you file a modification request but couldn’t afford their fees, bring a list of the names of lawyers you spoke to, the date you spoke to each one, and the fee the lawyer quoted you. If you tried to hire a legal aid lawyer to help you but you make too much money to qualify for such assistance (or the office had too many cases, or doesn’t handle child support modifications), make sure you bring the name of the lawyer and the date of the conversation.
The judge may put you in jail or may instead order you to make future payments and set up a payment schedule for you to pay any unpaid support. The judge won’t reduce the amount of your unpaid support -- arrears cannot be modified retroactively -- but may decrease your future payments. The judge may also order that your wages be withheld, that a lien be placed on your property, or that you post a bond or other assets.
Judges rarely put a parent in jail for contempt of court. Usually, it happens only if an income-withholding order and a wage garnishment won’t work. Courts recognize that a jailed parent cannot earn money to make child support payments.
For information on other methods of collecting child support, including wage withholding orders, liens, posting bonds, and more, see our Enforcement of Child Support Obligations area.
This is an excerpt from Nolo's Solve Your Money Troubles: Debt, Credit & Bankruptcy, by Margaret Reiter and Robin Leonard.