If your spouse or co-parent has stopped paying your child support, there are a number of options potentially available, depending upon the situation and the terms of the judgment that awarded you the support. Keep in mind that in Florida, at some point the child may choose which parent to live with.
The first option, if it’s not in place already, is to request what is called an Income Withholding Order (IWO). An IWO is an order that is signed by the Court that directs any and all present and future employers of an obligor parent to automatically withhold his or her support obligation from their paycheck. The employer sends the payment directly to the Central Government Depository, who thereafter issues a check to the obligee parent. This is typically the first option for parents who had previously agreed to implement direct payment and for whom payments have become increasingly erratic or delinquent.
Note that by law a court is obligated to impose an IWO (formerly called an “Income Deduction Order” – see Florida Statutes 61.1301(1)(a)), so with the exception of older cases for which this statute didn’t yet apply, the only time an IWO will not be used is if the parties have otherwise agreed to direct payments. This means that getting an IWO put in place is relatively easy to do if it can be shown that the obligor parent is delinquent and there is entitlement to support (i.e. there is a Final Judgment or other Order that grants child support entitlement).
If you do find yourself requesting such an IWO, be sure to ALSO request that the court assess any arrearage in support that might be due and owing to you, as payment toward the back support can also be ordered to be paid by income withholding (the statutory rate being 20% of the prospective monthly obligation). For example, if the obligor owes $100.00 in “regular support” each month his or her arrearage payment will be $20.00 each month. The arrearage payment will be made each month until the total back support is paid in full (therefore arrearage payments survive other terminable conditions for child support, such as the child becoming self-supporting or reaching the age of majority).
Where an IWO might not service you, however, is where the obligor parent is self-employed or makes cash (read: under the table) income. An IWO will be of little service in such situations. The option is therefore enforcement.
Child support orders are enforceable by contempt. To prove contempt you have to make a showing that the obligor parent had ability to pay the support and that he or she willfully failed to meet that obligation. Support can be paid from more sources than just income; for example, overall financial assets such as boats, cars, jewelry, retirement plans or other liquidable assets can be sourced to pay a child support obligation.
If you get an order of contempt, there will often be what is called a “purge” payment for the obligor to avoid further punishment, such as incarceration (the misdemeanor crime being the willful failure to obey the Court’s direct order in paying support). However, if the Court does not find enough evidence of either willfulness or ability to pay then you might find that while you support arrearage is permitted to continue to accrue there will be no punitive enforcement action issued against the obligor until such time as he or she is able to resume payment. Typical examples of this include temporary unemployment situations and/or medical leave situations.
Other remedies also exist for the purpose of support enforcement. If you payments are due to be made through the Central Depository, then you can motion to have the obligor’s driver’s license suspended. This will initiate a hearing (probably quicker than anything as obligors pay quick attention to these notices) as to whether or not the non-payment is justified. And if you’ve been through multiple contempt proceedings and find yourself with an arrearage lump sum for a child who has since aged out, then the Court might look into “monetary judgment” awards to satisfy the debt.
There are many different options for non-payment of support, but your course of action will ultimately depend upon the circumstances of your case, including the terms of the obligation and the reason for non-payment.
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