Georgia Child Support Enforcement

Unfortunately, it is a sad reality that many parents in Georgia shirk their legal and familial responsibilities and do not pay their court-ordered child support. Fortunately, the state of Georgia takes this very seriously.

If a non-custodial Georgia parent is required to pay child support, the guardian (or other recipient of the child support) may file a petition for a legal contempt proceeding. This contempt petition is considered a new action ancillary to the original divorce or child support proceeding, and generally, the Georgia court that issued the original child support order is the court where the petition for citation of contempt should be filed.

Once the petition for contempt is filed, it must be personally served upon the respondent (the individual who is accused of non-payment of the child support obligations). Interestingly, a counterclaim cannot be filed in response to a motion for contempt in Georgia, and the court cannot modify child custody or child support in the contempt action. If a party desires to seek a modification of the original child support order, a separate action must be filed. Modification of visitation, however, can be considered with a contempt action.

To defend against the complaint, the respondent in a contempt motion is entitled to reasonable notice and an opportunity to be heard, but there is no right to a jury trial. The respondent must face a judge and explain his or her failure to pay Georgia child support under the court order.

With the recent economic downturn, our practice has seen an increase in contempt filings for failure to pay child support in Georiga. In many cases, clients come to us because they are unable to pay the amounts for which they are obligated. If this is the case, the smart thing to do is to speak with a divorce lawyer before you stop paying child support, as your divorce attorney may be able to modify the child support order.

For individuals who do not petition the court for a child support modification, there are some possible defenses to a failure to pay child support. Generally, the petitioner has the burden of proof to demonstrate that the respondent did not pay. Once this is accomplished, the respondent may show that the failure to pay was not willful. For instance, if the respondent was recently terminated from employment, his or her failure to pay was not necessarily willful so much as the result of an inability to pay. On the other hand, if the respondent’s failure to pay is attributable to willfully giving up employment, a failure to pay would likely be considered willful.

Other potential defenses to a child support contempt action in Georgia might include a change in custody, the receipt of supplemental payments, or an alternate agreement between the parties. Generally, a parent obligated to pay child support is not entitled to a “set-off.”  For instance, buying shoes or school supplies for the child instead of paying child support would not likely be considered acceptable. However, please keep in mind that each case is different, and courts often take into account the totality of the circumstances. Always consult an attorney.

While “willfulness” is required for a Georgia court to find contempt in a failure to pay child support, a lack of willfulness does not necessarily relieve the parent of the obligation to pay. Thus, if a court finds that there was a failure to pay child support, it will likely determine how much is owed in arrears. It becomes the responsibility of the petitioner to establish the amount in arrearage, and this must be accomplished by supplying evidence. Attorneys practicing family law will often advise clients to keep receipts of all payments.

In Georgia, child support awards accrue interest at a rate of seven percent per annum, and any interest owed generally becomes part of the arrearage. Once an arrearage amount is established, if the court finds the failure to pay was willful, it may determine what sanctions are appropriate. Sanctions can include fines, attorney’s fees, and/or imprisonment.

Georgia courts have broad discretion in structuring sanctions for contempt. The court may implement a payment schedule whereby the respondent is ordered to pay the arrearage in installments or by a certain date. The respondent can purge himself of the contempt by paying the amount owed in full. If the court imprisons the respondent for willful failure to pay child support, the court will set forth a purge amount. Once the respondent pays that amount, he will be released from imprisonment. The respondent may apply for release at any time if he is able to show an inability to pay or a good faith willingness to pay. A court will not continue to hold someone in jail for failure to pay child support if he can show an inability to pay the purge amount. Of course, courts are often mindful of the fact that imprisoning someone for failure to pay child support can result in a loss of employment and, thus, a total loss of income.

Child support laws in Georgia are extraordinarily complex. We highly recommend consulting with a divorce and family law attorney in any situation involving child support.