If a parent does not pay child support, the other parent will need to enforce the order to get the child support. There are a variety of civil and criminal proceedings available to help collect child support.
How big a problem is collection of child support?
Big! According to the U.S. Census Bureau about one-third of ordered child support is not paid at all and for another third there is a child support arrearage.
If the child support is a court order, and a person can be charged with a crime for not paying child support, why do so many people get away with it?
Bank robbery is also illegal and a crime, yet there are bank robbers who get away with it. Similarly some child support obligors change addresses frequently, or go into hiding. It’s like the bank robber – if you can’t catch him, you can’t punish him. Other child support obligors change jobs each time they are slapped with a new wage deduction order.
What are the means of enforcing child support?
Contempt proceedings, automatic wage deduction, charging the obligor with a crime, having the driver’s license of the obligor suspended. Each of these ways is discussed below.
My ex-husband is working, but has not paid child support for several months. Can the support payments be taken directly from his pay?
Yes. Every support order entered on or after July 1, 1997 requires an order for “income withholding” (like garnishment). This means when a support order is entered, the court can require automatic withholding of payments from teh obligor’s paycheck. Wage withholding may be had for both current and past-due support.
Will the child support payments come directly from the employer to me?
Not in most instances. State law requires that child support payments pass through a State Disbursement Unit (SDU) that monitors payments and maintains records of the support payments. However, if you do not want your payments to go through SDU, you have that option.
How can SDU be bypassed?
Only if the parties agree and the court specifically approves an alternate child support payment arrangement.
My ex-husband said his employer will not do withholding and doesn’t have to. Is that true?
No. By law, after a withholding order for child support order is entered and a notice of withholding order is served on the employer, your ex-husband’s employer is required to withhold support. There are also the potential for penalties of $100 per day but in light of limitations in the law this is now somewhat unusual because there are a number of limitations in order to seek these penalties.
Are contempt proceedings an effective way to collect child support?
Yes. One who purposefully disobeys a court order, like an order for child support, can be held in contempt of court and punished by imprisonment.
The inability to pay the child support is a defense. One appellate case affirmed a finding of contempt when the obligor failed to produce receipts evidencing money he spent for his basic needs of life.
The order sentencing an obligor for contempt must have a purge provision, that is, an amount of money the obligor must pay in order to gain his release from jail. That amount must be within the ability of the obligor to pay.
Can the driver’s license be suspended on account of an arrearage in child support?
Yes, but only if the arrearage is at least $500 and he is at least 90 days past due. License privileges may be suspended until the court determines that the child support has been paid. Also any other license issued by the state, like a medical or law license may be suspended.
However, the court may grant the obligor a driving permit that would allow him driving privileges for work or medical necessity. *750 ILCS 5/505(b), 750 ILCS 45/15(b)(3), 625 ILCS 5/7-702.
My ex-husband often travels overseas on business. Can anything be done to stop his traveling until he is current in child support?
Yes. If there is a judgment against your ex-husband for an arrearage, the Illinois Department of Child Support Enforcement can be notified and will provide the U.S. State Department with your ex-husband’s name. If his name is on the list and he tries to obtain or renew a passport, he will be denied until the arrearage is made current.
How do attorneys charge for bringing enforcement proceedings, like contempt?
Attorney’s fees in divorce and paternity proceedings cannot be based on a percentage, except there may be a contingent (percentage) fee for the enforcement of a support or maintenance arrearage. The usual contingent fee is often one-third of the amount collected.
If, however, the amount involved is large and the enforcement will take little time (as, for example, when the obligor has a very large sum of money on deposit at a bank) then the child support recipient is better off hiring a lawyer by the hour.
My ex-husband disappeared over three years ago and owes child support in a substantial amount. I cannot afford an attorney. Are any governmental services available to help me?
All states are required by federal law to maintain child support enforcement offices under the federal IV-D program. These enforcement agencies are required to provide legal services at no charge to the client. In Illinois , the state agency that provides child support enforcement services is the Illinois Department of Human Services. In Illinois, services are available to both AFDC and non-AFDC persons. Their toll-free number is 1-800-447-4278.
Isn’t it better to go to a private collection agency rather than the State?
It depends on the case. State agencies have information from federal databases, financial information, IRS and unemployment intercept capabilities that private collection agencies do not normally possess. Also, private collection agencies will most likely charge a fee of 1/3 of the recovery. On the other hand, state agencies typically are backlogged and sometime the result is slower. Private attorneys also handle child support enforcement and collection cases, usually on the basis of 1/3 of the recovery.
If I hire a private attorney, can the lawyer request wage withholding?
Yes. Also a custodial parent may serve the notice of withholding. The Circuit Clerk of the county where you reside has these forms.
Can a large arrearage in child support be the basis of convicting a person of a crime for which he will go to jail for a fixed period of time?
Yes, if the failure to pay is willful. If the child support remains unpaid for longer than six months, or the arrearage is greater than $5,000 it is a Class A misdemeanor, punishable by up to one year in jail.
It is a Class 4 felony to leave Illinois with the intent of evading a support obligation that has remained unpaid for more than six months, or if the arrearage is more than $5,000. Also, willfully failing to pay support for more than one year, or an arrearage greater than $20,000, is a Class 4 felony.
The sentence for a Class 4 felony is not less than one year or more than three years in prison. For a felony charge the obligor can be extradited from another state. This is the significant tool when the obligor does not live in Illinois.
But if he goes to jail, he may lose his job and then he will be unable to pay.
If he is employed he can be jailed on a work release basis.
Is there anything that can be done about the support obligor who is unemployed?
Yes. “[T]he court may order the person to seek employment and report periodically to the court with a diary, listing, or other memorandum of his or her efforts in accordance with [the] order.” 750 ILCS 5/505.1(a).
The children’s father is unemployed, but receiving unemployment benefits. He hasn’t paid anything since he became unemployed. Is there anything I can do to collect?
Yes. The child support as ordered by the court will keep accruing until modified. However, most likely he is receiving in addition to his share for unemployment, a “dependency allowance.” Some parents think that when they receive an unemployment check, they are entitled to keep it. You may obtain a court order for child support payments out of the unemployment benefits.
Are there other means of collecting a child support arrearage?
Yes. The child support arrearage can be treated like any ordinary debt. As a matter of law each missed child support payment is an automatic judgment against the obligor. If the obligor owns real estate that judgment will be a lien against his real estate and it can be enforced (like a foreclosure) against the real estate. A judgment can also be enforced against other assets, such as an automobile, a boat, or shares of stock. Similarly a judgment can be enforced by garnishment of a bank account.
I am divorced. My ex-husband has a pension and a retirement plan account through his employer. If I obtain a judgment for the child support my ex-husband owes, can I collect it from his retirement plan?
Yes. Federal law allows you to request that the court enter a Qualified Domestic Relations Order (QDRO) to pay the child support arrearage. QDRO’s are highly complicated. It is virtually a must to have the assistance of a qualified lawyer. (Not all lawyers are experienced at drafting QDRO’s.)
My ex-husband is a physician/lawyer/barber etc. Can the State of Illinois suspend his license to practice because there is an arrearage of child support judgment against him?
Yes. You or your lawyer can seek assistance from the Illinois Department of Public Aid who can report your ex-husband to the Department of Professional Regulation. The Department of Professional Regulation must revoke, suspend, or deny a professional license by any person who has been certified by the Illinois Department of Public Aid as being more than 30 days behind or being certified by the court as being in violation of complying with the Non-Support Punishment Act for more than 60 days. *305 ILCS 5/10-1, 305 ILCS 5/10-17.6, 305 ILCS 5/10-17.9.
My ex-husband usually receives an income tax refund every year. May the child support he owes be taken out of his refund check?
Yes. Under the Public Aid Code, the Illinois Department of Public Aid may “intercept” state and federal tax refunds to satisfy past-due support obligations.
How does bankruptcy affect past due child support or maintenance (alimony)?
Child support and maintenance are not dischargeable in bankruptcy.
How long should I wait before I bring legal proceedings to enforce a child support obligation, that is, how much of an arrearage should there be before I start enforcement?
Ideally there should be zero tolerance. There may, however, be the practical consideration of spending more on attorney fees than is owed in support.
My ex-husband now lives in Texas but I have a child support order in Illinois. Do I have to go to Texas to have the child support order enforced or obtain a new one?
No. Under federal law all states enact uniform interstate laws, such as UIFSA (the so called Uniform Interstate Family Support Act). Withholding can be used to enforce a support order in another state.
Is there a law that makes it a Federal crime if one does not pay child support if the child lives in another state?
Yes. The Child Support Recovery Act of 1992 makes it a federal crime. Under this Act, it is a crime for a person to willfully fail to pay past-due support obligations with respect to a child who resides in another state, once a determination is made that the amount is due for support of a child.
The Act applies to obligations remaining unpaid for a period longer than one year, or is greater than $5,000 if the child resides in another state. The act also applies to a person who travels to another state or country with an intent to avoid paying support if it remains unpaid for a period longer than one year, or is greater than $5,000.
Can I collect interest on child support owed?
Yes. This interest rate may attach to each support judgment at the rate of 9% — statutory interest. Generally, the imposition of this interest is mandatory in the sense that if contested the court must grant interest retroactive to the date payments were due (with certain limited exceptions for very old support orders).
I was browsing the web and found pictures of “deadbeat” parents owing child support on a web site. How do I get my ex-spouse’s picture posted on the web site?
First, a judgment must be obtained to find your ex-spouse in arrears. If your ex-spouse owes more than $5,000 in child support and has not made a voluntary payment in 90 days, you may authorize the Illinois Department of Public Aid to post your ex-spouse’s photo on the Illinois Department of Public Aid web site.