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Enforcement of Child Support Orders in a New York Divorce
New York Child Support Enforcement
In New York, the court can establish a child support order once a petition is filed. The person responsible for support must be the child's parent through marriage or through the establishment of paternity. Under New York law, parents, whether they are married to each other or not, are equally responsible for the support of their children. This obligation is in effect until the children reach the age of 21.
Child support enforcement agencies helps people get child support orders; collect child support payments; and take action against people who should pay child support and are not paying.
There are child support enforcement agency offices in every county in New York State (usually found within the Department of Social Services) and in each borough in New York City (part of the New York City Administration for Children's Services).
One of the principal goals of the child support enforcement program is to ensure that all child support payments are received in full. The primary enforcement tools of the support collection unit are administrative, and do not require the involvement of the court. Administrative remedies can be used to collect all arrears/past due child support, regardless of whether they have been reduced to a judgment. Where administrative remedies do not prove effective, however, the support collection unit can also petition the court for enforcement.
Administrative Enforcement - The following sources of income can be redirected to custodial spouse in the case of non-payment of child support:
- Income Execution-All orders of child support issued in New York State are required to provide for immediate wage withholding. This requires the employer to deduct the child support obligation amount plus an additional amount to reduce arrears (if any) and forward the money directly to the support collection unit.
- Income Tax Refund Offset-any State or federal income tax refund due to the payer can be intercepted and applied to the repayment of the past due support/arrears.
- Lottery Prize Offset-The support collection unit can intercept Lottery prizes in excess of $600 and apply it to the repayment of the past due support/arrears.
- Driving Privilege Suspension-The support collection unit can direct the New York State Department of Motor Vehicles to suspend that payer's driving privileges.
- Property Execution-Seize the liquid assets (e.g., bank accounts) of child support payers who owe past due support/arrears, and apply the proceeds to the repayment of past due support/arrears.
- Liens-Place liens against real or personal property of child support payers who owe past due support/arrears. A lien will prevent the sale or transfer of the property until the past due support/arrears are repaid.
- Referral to the Tax Department-New York State Department of Taxation and Finance (DTF) is authorized to employ all methods available for the collection of past due taxes to the collection of past due child support. This method is particularly useful against self-employed persons who own businesses.
- Credit Bureau Reporting-Arrears are presented as a bad debt to all major consumer credit reporting agencies. This action is likely to negatively effect the ability of the child support payer to obtain credit.
Court Enforcement - There are numerous avenues that the court may follow to prosecute non-payment of child support:
- suspend the payer's business, professional or occupational licenses,
- suspend the payer's recreational licenses, and/or
- require the payer to post an undertaking (an amount of money paid in advance against which future child support payments can be drawn).
If a hearing find that a child support payer has willfully violated an order of support (was financially able to meet the obligation, but intentionally failed to do so), the court must order the payer to pay the counsel fees of the other party. Further legal action may include to commit the payer for jail up to six months or place the payer on probation.
It's a major headache for everyone when a parent
refuses to pay his or her court ordered child support. This is a serious problem
of national dimensions. A recent study found that less than half the parents
awarded child support receive payment in full. The U.S. Census Bureau reported
that in 1999, non-custodial parents failed to pay $13 billion the owed in
child support payments. This failure is a major cause of poverty in children.
- Families
receiving public assistance - In
New York, each county has established a child support enforcement agency
that can assist you in collecting child support from your spouse. This
agency has responsibility for collecting child support for families
receiving cash assistance. However, you may also
apply for help even if you are not receiving cash
assistance. If you do receive cash
assistance in New York, you must assign child support rights to the state.
You must also help to locate the parent who is absent
from the home.
If you do not cooperate, you may be denied public assistance benefits.
- Families
not receiving public assistance - Services
are available to non-public assistance parents by the payment of a
non-refundable $25 fee. If you are representing yourself, and you are not on
cash assistance, applying to the child support
agency in your county for help is an excellent
method of obtaining legal representation at minimal cost.
A child support order is as enforceable as any
other court judgment or decree. A parent who is owed child support can use each
and every legal tool available to enforce the order, including wage
garnishments, wage assignments, contempt
of court decrees and the seizure of the non-payor's property by writ
of execution.
Use the
Government's Parent Locator Service
Nonpaying parents may hide
from the custodial parent in order to avoid their child support obligation. They
may even go so far as to move out of state to avoid their responsibilities.
In order to fix this problem, the federal
government has created the Parent Locator Service (The law also requires
the states to establish a Parent Locator Services). The law allows you to
use the resources of the federal government (including the Social Security
Administration and the Internal Revenue Service) to locate a nonpaying parent's
employer. Once found, the custodial parent or the state can enforce the child
support order and collect unpaid support recovering support from tax refunds.
The law also permits the IRS to pay past due child
support from tax refunds that the nonpaying parent is
due from the government.
For more information on the Parent Locator
Service, contact the local office of the Department
of Health and Human Services.
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Obtain a Wage
Assignment
A wage assignment is a special procedure that allows
the court to order an employer to make direct payments to the custodial parent
from the wages of the supporting parent. You can apply to the court for a wage
assignment. Notice of this action must be served on the paying parent's
employer. The employer will deduct child support like
any other deduction from the paying parent's paycheck and send the money
directly to the custodial parent. If the nonpaying parent
holds a steady job, this is a very valuable tool.
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Request a
Writ of Execution
A child support order can be enforced just
like other court judgments. The court can seize assets of the nonpaying
parent such as real property, bank accounts, stock, a paid-off car or other
property. If you want to try this method of enforcing
child support, it is a good idea to
find an experienced attorney.
If you choose to go forward on your own, you
should be aware that the New York Court Rules provide
a wide variety of means to execute on judgments.
- A judgment creditor (you) can use legal
methods to find out whether a debtor (the non-paying parent) has assets and
where the assets are located, if you have a money judgment.
- One rule provides for the issuance of a writ
of execution which is used to obtain real and personal property of the
debtor or to exclude the debtor from having access to or use of personal
property or to remove it from the premises.
- Also the sheriff will use to post notice of
the writ of execution on real property and to remove, label, or post notice
of the attachment of personal property.
If you are not successful obtaining the property
using the methods described above, you have other choices. For example, you can
garnish the property of the judgment debtor. Generally a writ of garnishment is
used when a third party is holding property of the judgment debtor
(no-paying parent). The rule states when the writ may be filed and what
information shall be included in the writ.
In addition to the methods of securing a wage lien
offered in the New York , the legislature has passed laws to assist recipients
of support to collect the funds due them from parents ordered to pay child
support.
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Bring a Civil
Contempt of Court Action.
If a person willfully disobeys a lawful child
support order, s/he can be jailed for contempt of
court. The civil contempt action is brought by the custodial parent. The court
clerk will have the proper forms. After that, the nonpaying parent will have to
be notified (served with process)
since he or she has the Constitutional right to appear at the hearing and
present a defense. If the nonpaying parent is served and does not appear, the
trial court will order a bench warrant issued for his or her arrest.
If the court (finds beyond a reasonable doubt)
that the parent has willfully failed to pay valid child support order, the court
can order the nonpaying parent jailed. (A parent showing that they did not have
the ability to pay will not be found in contempt of court, however s/he will
continue to owe the money.)
Often, the mere threat of jail is
sufficient to pry open the non-paying parent's pocketbook. However, in severe
cases, parents will be jailed. Sometimes the jail sentence will end only when
the proper payment has been made.
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