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Help! How Do I Get Money In-Hand for Unpaid Child Support and Extraordinary Expenses?
You’ve received an Order from the Court that requires your Ex to pay you child support each month, as well as an Order that your Ex pay some percentage of costs for things like extracurricular activities and extraordinary medical expenses for your child. The long legal battle is over, and you can rest.
Then, a few months later, the inevitable happens.
Your Ex does not pay.
Fortunately, for those parents who have been awarded child support and/or reimbursement for extracurricular or extraordinary medical costs, the law provides several options for enforcement against the non-paying parent (“Obligor”).
Unfortunately, this process can be confusing, and many legal practitioners – and even Judges – struggle to understand which options apply in certain scenarios. (In any case, a party may seek a Citation for Contempt against a party that has failed to comply with a Court Order, but the focus of this article is enforcement, i.e.; how to get money in-hand).
To provide some guidance on enforcement options, the most common scenarios are addressed below:
My Ex has been ordered to pay a specific amount of child support each month and has not made the payment(s).
Under Colorado law, a child support payment is converted into an enforceable support judgement on the day that it is due and not paid, and immediately begins to accrue interest at a rate of 12%, compounded monthly. In cases where payments have not been made for many months, or even years, the amount of interest owed on the unpaid child support can exceed several thousand dollars.
However, the operation of law that converts a missed payment into a support judgment does not magically deposit funds into your bank account. In order to obtain actual funds from the Obligor, you will need to file a “Verified Entry of Support Judgement” with the Court reflecting the timeframe at issue, the amount that should have been paid, the amount that was actually paid, and the interest accrued thereon.
Once this document is filed with the Court, you may seek enforcement against the Obligor’s employer, bank accounts, and property by way of liens or a Writ of Garnishment. There are pro’s and con’s to each method of enforcement, however, it is important to remember that support judgements are not dischargeable in bankruptcy. While it may take some time to recover all of the funds owed to you, you will continue to accrue interest on the principal amount owed and the Obligor is unlikely to escape ultimately paying the judgment over time.
In the case of a garnishment with an Obligor’s employer, you will begin receiving payments directly from the employer each time that the Obligor receives a paycheck. However, Colorado law sets limits for the percentage of earnings that may be garnished, so you may receive smaller payments towards the total amount owed until that amount is paid off.
When garnishing a bank account, you will be limited in the amount that you recover by how much money the Obligor has in the account. For instance, if you seek to recover $1,000.00, and the Obligor only has $100.00 in the account, you will only receive $100.00 until/unless the Obligor places more funds into the account in the future.
Alternatively, a lien against property is a viable option, and may result in a lump-sum payment, however, you may not receive the funds until the property is sold or otherwise transferred.
My Ex has been ordered to pay a percentage share of extracurricular expenses and extraordinary medical expenses but has failed to do so.
A distinction has been made, however, between amounts owed that are “sum certain,” such as the set monthly amount of child support, and payment of expenses that may fluctuate over time. Most often, this situation presents itself in cases where a party is ordered to pay a percentage amount owed towards extracurricular or extraordinary medical expenses for a child.
For example, if an Order requires that a party contribute 50% of the cost of extracurricular or extraordinary medical expenses for a child, the actual dollar value of that amount may fluctuate from month to month. Certainly, there will be months when there are no extraordinary medical expenses, and other months when there may be significant expenses (perhaps a child has broken an arm). The same is true for extracurricular costs.
This issue becomes even more complicated when there is specific language in the Court’s Order regarding notice to the other party about the amount of the expense, timelines and requirements for exchange of receipts and/or invoices, and whether the agreement of both parties is necessary for the expense to be reimbursable.
When dealing with this scenario, the very first step is to ensure that you have complied with all of the notification and exchange of documentation requirements necessary under your specific Court Order. If you have done so, then any failure by the opposing party to pay the amount owed will result in a support judgement, subject to the same interest and enforcement procedures as described in the previous section.
However, because the amount owed can be subject to debate (the other party may claim that you failed to provide documentation or notice as required, or may even dispute the actual amount spent or owed), you cannot simply file a Verified Entry of Support Judgment and immediately seek enforcement. Instead, you must file a “Motion for Entry of Support Judgment” and request that the Court enter an Order awarding you the support judgment and certifying the amount owed.
In this scenario, the Obligor has a due process right to file a Response with the Court, disputing the amount at issue and/or your compliance with the notice and documentation requirements, and may even request an evidentiary hearing regarding these issues. Unlike enforcement of a “sum certain” amount of child support owed, you cannot seek a Writ of Garnishment or enter a lien against property in this scenario until you have received an Order from the Court regarding your Motion for Entry of Support Judgment. However, once you receive an Order granting your Motion, you may seek the same enforcement options described above.
My Ex has failed to pay both the monthly child support amount AND their contribution to extraordinary expenses.
In the case that your Ex has failed to pay both a “sum certain” amount of child support and has failed to pay their portion of extracurricular and/or extraordinary medical expenses, you will need to seek enforcement under both options outlined above.
You will need to file a Verified Entry of Support Judgment for the amounts owed and not paid as specific child support, and a Motion for Entry of Support Judgement for any amounts that would have been subject to debate or fluctuation over time and seeking a Court Order establishing the amount owed as a judgement.