Is the other parent not paying child support? Try a Notice of Delinquency

due-date-calendar-means-submission-time-frame-300x273There are many different enforcement methods available for child support. Although contempt is always an option, it involves the other parent ending up in jail and can be a costly and expensive process to prosecute. Some of the best incentives for the other parent to pay child support already exist as a matter of law without the supporting parent having to do anything. For instance, child support arrears can never be discharged in bankruptcy, so they stay with the support obligor for life. Further, they accrue rate at the legal rate of 10 percent. What kind of investments today gets you 10 percent? Not many.

There is, however, another incentive that many parties and even many attorneys are not familiar with: the Notice of Delinquency.

Family Code section 4722 states the following (emphasis added):

“(a) Any person with a court order for child support, the payments on which are more than 30 days in arrears, may file and then serve a notice of delinquency, as described in this chapter.

(b) Except as provided in Section 4726, and subject to Section 4727, any amount of child support specified in a notice of delinquency that remains unpaid for more than 30 days after the notice of delinquency has been filed and served shall incur a penalty of 6 percent of the delinquent payment for each month that it remains unpaid, up to a maximum of 72 percent of the unpaid balance due.”

In other words, if this procedure is correctly followed, the arrears balance will accrue interest at 6 percent per month (instead of per year) for as many as 12 months. For instance, if a parent is owed $10,000 in arrears and utilizes the Notice of Delinquency procedure, and the other parent doesn’t pay anything for 12 months, that $10,000 will have turned into $17,200!

It’s important to note that this procedure isn’t automatic. See Family Code section 4726:

“No penalties may be imposed pursuant to this chapter if, in the discretion of the court, all of the following conditions are met:

(a) Within a timely fashion after service of the notice of delinquency, the support obligor files and serves a motion to determine arrearages and to show cause why the penalties provided in this chapter should not be imposed.

(b) At the hearing on the motion filed by the support obligor, the court finds that the support obligor has proved any of the following:

(1) The child support payments were not 30 days in arrears as of the date of service of the notice of delinquency and are not in arrears as of the date of the hearing.

(2) The support obligor suffered serious illness, disability, or unemployment which substantially impaired the ability of the support obligor to comply fully with the support order and the support obligor has made every possible effort to comply with the support order.

(3) The support obligor is a public employee and for reasons relating to fiscal difficulties of the employing entity the obligor has not received a paycheck for 30 or more days.

(4) It would not be in the interests of justice to impose a penalty.”

The bottom line, as we see it, is that if a support obligor had the ability to pay and did not, the Court will be hard pressed to cut him or her any slack, particularly in light of the legislative pronouncement that a “parent’s first and principal obligation is to support his or her minor children according to the parent’s circumstances and station in life.” (Family Code section 4053.)

Feel free to contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child support. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

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