Child Support Arrearages

1. What happens if a parent falls behind on child support payments?

When a parent does not make child support payments on time, the overdue payments are called “arrearages” and the person is “in arrears” on payments. Judges have become very strict about enforcing child support orders and collecting arrearages. The penalties for a parent who racks up child support arrearages are as follows:

1) Jail;
2) Driver’s license revocation;
3) Seizure of bank accounts;
4) Suspension of professional licenses;
5) Suspension of passports;
6) Seizure of a personal injury or worker’s compensation award;
7) Child support arrears become a judgment(s);
8) Report of child support arrears to the credit bureaus;
9) Seizure of tax refunds;
10) Seizure of lottery winnings;
11) A judgment on any real estate owned in New Jersey. 

The State of New Jersey is constantly creating new penalties and sanctions for parents who accrue large child support arrears. However, based on my observations, the problem of collecting child support arrears is only getting worse. It is extremely expensive to live in New Jersey. Many “deadbeat” dads simply move out of New Jersey to escape paying for child support. Many probation departments and desperate mothers are forced to track down “deadbeat dads” around the country. It is not uncommon for a person to move to several states to avoid being “captured” by a child support garnishment order.

2. How is child support enforced if one parent does not pay?
 
In many cases, the parent does not pay his or her child support obligations. There is no shortage of “deadbeat dads” and “deadbeat moms” in New Jersey. When a parent fails to pay child support and the money becomes past due, the amount is called an arrearage. There are two types of arrears: fixed arrears and unfixed arrears. Fixed arrears are amounts which a court has found to be due and owing. Unfixed arrears are amounts which the supporting payor owes, but which have not been addressed by the court. An enforcement application is an attempt to get the courts to address the arrears and require the owing parent to pay.

A party or an attorney for a party may file an application for enforcement. Additionally, when the child support is being collected by the local probation department, the probation officer that supervises the case may also file an enforcement application. If a party fails to make their child support payments, the probation department will notify the payor that his continued failure to pay will result in contempt proceedings.

Thereafter, once the supporting payor falls behind more than 14 days in payments, the probation department will file a statement with the court, and set forth the facts regarding the nonpayment. Following that step, the probation department may then apply to the court for relief on behalf of the party who is supposed to receive support.

In a divorce case, if a party is not paying child support, then an enforcement motion is filed by the supported spouse. Probation will not get involved in enforcement motions of child support if the case is still in divorce proceedings.

3. Can a person be arrested if he does not pay child support?

A court has other more drastic methods to “encourage” a person to pay child support. The court has the ability to suspend a person’s driver’s license or professional license if he refuses to pay child support. A court can suspend a person’s law license, medical license, or any other license. The threat of this type of sanction can instill the “Fear of God” into someone. In many cases, child support arrears are brought up-to-date rather quickly once this threat is put into writing or in a motion. The court can also suspend a person’s passport if he or she refuses to pay child support. This can cause significant aggravation to a person if he or she frequently travels for business.

Additionally, accrued child support arrears are reported to the three credit bureaus. A report of significant child support arrears will negatively impact a person’s credit score. Moreover, child support arrears also constitute a lien on a person’s real estate. In short, a person can’t refinance their home if he or she has child support arrears.

If all of the above sanctions still do not work, then the court will issue a bench warrant for the arrest of the “deadbeat dad.” The Sheriff will go out and arrest the “deadbeat dad” at his home or at his place of employment. Once the warrant has been issued, then if the “deadbeat dad” is stopped for a traffic ticket, then the local police officer will arrest and incarcerate him on the bench warrant.

The “deadbeat dad” will then be taken to the local county jail. The court will set a purge amount. A purge amount is the amount of the child support arrears that the “deadbeat dad” must pay in order to be released from jail.

The “deadbeat dad” will eventually be taken before the court for a “purge hearing.” The court will not permit the defendant to be released until some of the child support arrears can be paid. Moreover, the defendant must also propose a reasonable payment plan for the arrears.

4. I owe tens of thousands of dollars in back child support arrearages. Can I file any type of application with the court to abolish my child support arrearages?

Unfortunately, there is no way out of paying for child support arrears. New Jersey has an “anti-retroactive” child support modification statute. The anti-retroactive child support modification statute bars the retroactive modification of permanent child support arrears. However, the statute does not bar the retroactive modification/reduction of child support arrears that accrue after the child’s emancipation.

5. I want to come “clean” with my child support arrearages. However, my total arrears are now higher than the principal on my mortgage. Is there any way out of this mess?

In my experience, I have noticed that many fathers escape child support by moving to the South and particularly to Florida. It is not uncommon for a parent to amass child support arrears that can approach the amount of $50,000. Many parents get sick of dealing with the pressures of owing such a high amount of arrears. However, many parents have ties to New Jersey, and they want to be able to come back here to visit with friends and relatives. Unfortunately, this often becomes impossible because in most instances there are outstanding warrants for their arrest.

Many distressed parents are really caught in a quagmire. They want to come clean and start paying off their child support arrears. However, they can’t risk coming back to New Jersey or attending court because they will be arrested.
        
There is one way out. Child support arrears that accrue after a child has been emancipated can be modified or reduced. In New Jersey, the child support arrears continue to accrue until the child reaches the age of 23. I have seen cases where the arrears continue to accrue until the children have reached the age of 26. Many parents simply “blow off” their child support obligations, and they have no contact with the court. Consequently, the child support arrears inevitably grow into a monstrous amount. Many times, the child support arrears continue to accrue long after the children have become emancipated.

The bright line rule is that child support arrears can’t be modified. However, any child support arrears that accrue after a child has been emancipated can be retroactively modified. A parent will have to hire a crafty lawyer and file a motion to request emancipation and a retroactive modification of child support. A “deadbeat dad” should make a significant payment toward his arrears before any motion is filed. Most courts thoroughly review the parent’s probation payment history before they rule on any child support arrears motion. If a parent has made a good faith effort to pay down some of the arrears, then this increases the chances that a court will be inclined to grant the parent some type of relief. If a parent has not made any recent child support payments, then the chances of obtaining some type of downward modification of the child support arrears are almost zero.

6. What is the leading case that concerns the retroactive modification of child support arrearages?

A very illustrative case on the retroactive modification of child support arrearages is Bowens v. Bowens, 286 N.J. Super. 70 (App. Div. 1995). Here, the plaintiff, Robert Bowens, and defendant, Ingrid Bowens, were divorced on June 27, 1986. Their son, Darryl, was born on May 20, 1970. The plaintiff was ordered by the judgment of divorce to pay $20 per week to defendant as child support for Darryl, who turned eighteen on May 20, 1988. The plaintiff filed a motion on September 28, 1993, that sought the elimination of all support arrearages that were incurred following the child’s eighteenth birthday. The motion judge hearing this uncontested matter concluded that Darryl was emancipated when he became eighteen on May 20, 1988, but the judge was constrained by the anti-retroactivity provisions of N.J.S.A. 2A:17-56.23a from eliminating the arrearages.  

Mr. Bowens argued that the anti-retroactive child support modification statute does not bar the elimination of arrearages based on the predetermined event of emancipation that occurred before the effective date of N.J.S.A. 2A:17-56.23a. The Appellate Division reversed the trial court, affirming Mr. Bowens’ argument that the child support arrearages could be eliminated.

The anti-retroactive child support arrearages statute N.J.S.A. 2A:17-56.23a provides in pertinent part:
 
"No payment or installment of an order for child support, or those portions of an order which are allocated for child support, shall be retroactively modified by the court except for the period during which the party seeking relief has pending an application for modification, but only from the date of mailing the notice of motion to the court or from the date of mailing written notice to the other party, either directly or through the appropriate agent. The written notice will state that a change of circumstances has occurred..."

This statute, enacted in 1988, was designed to comply with federal legislation. However, the Bowens case specifically holds that the anti-modification statute of child support arrears is not an absolute bar to modification in cases where the arrears accrue after a child’s emancipation.

In summary, the Bowens case held that the anti-retroactive child support modification statute does not bar the elimination of arrearages that accrue after the date of the child’s emancipation.