Delinquent child-support. What recourse do I have?
Full Question:
Answer:
You will find information on Wyoming's Child Support Enforcement Program in a link below. Child Support Enforcement is a joint federal-state program to collect child-support from fathers who are in arrears on court-ordered child-support obligations.
As a general rule, child-support enforcement occurs by writs of garnishment and execution, which create liens, but liens upon the obligor, not the obligor's property. The difference is this: a writ of garnishment applies to the person (the child-support obligor, the debtor); a lien applies to property, usually real property. What that means is that as a general rule an obligation to pay delinquent child support should not have the legal effect of impeding the sale of a residence, because the obligation is enforcible against the debtor, not the debtor's real property. As a general rule, the sale should proceed despite any "child-support lien," the mortgage lender should receive payment on its indebtedness before any other creditor is paid because the lenders "mortgage lien" gives the lender priority over any other creditor, but any money that would otherwise go to the seller would instead go to the seller's judgment creditor, that is, his children through payment of a delinquent child-support obligation.
Please read the response carefully for further information, and please see the links for additional information available online.
Child Support: Law and Definition.
Child support is a court-ordered payment by one parent to the custodial parent of a minor child after divorce (dissolution) or separation. Usually the amount of support is based on the income of both parents, the number of children, the expenses of the custodial parent, and any special needs of the child. In many states or locales the amount is determined by a chart which factors in all these figures. It may also include health plan coverage, school tuition or other expenses, and may be reduced during periods of extended visitation such as summer vacations. Child care expenses (resulting from employment), medical, and educational expenses will usually be pro-rated in proportion to the parent's income. Generally, child support payments are for the ordinary expenses of food, shelter, clothing, education and medication needs for the children only. Child support generally continues until the child reaches 18 years, graduates from high school, is emancipated (no longer lives with either parent), or, in some cases, continues after the child reaches 18, such as duiring college attendance. Some states have child support guidelines for determining what expenses are included and in what amount.
The award of child support may be modified by the court upon petition of either party if a change of circumstance of the parents or child is proven. Child support is separate from alimony (spousal support) which is for the ex-spouse's support. Child support is not deductible from gross income for tax purposes nor is it taxed as income, unlike alimony, which is deductible by the payer and taxed as the adult recipient's income.
Child support and visitation are independent obligations. You can’t stop paying support if visitation is denied, and you can’t deny visitation for nonpayment of child support. A person who denies ordered visitation or fails to pay ordered child support can be held in contempt of court and states have various remedies, which vary by state, for pursuing claims against parents who owe back child support. Such remedies may include driver's license suspension, wage garnishment, and attaching unemployment compensation, worker's compensation, and federal tax refunds, among others. Local law should be consulted for specific requirements in your area.
The Child Support Enforcement (CSE) Program is a Federal/State/local partnership to collect child support: we want to send the strongest possible message that parents cannot walk away from their children. Our goals are to ensure that children have the financial support of both their parents, to foster responsible behavior towards children, and to reduce welfare costs.
The CSE Program was established in 1975 as Title IV-D of the Social Security Act. It functions in all States and territories, through the State/county Social Services Department, Attorney General's Office or Department of Revenue. Most States work with prosecuting attorneys, other law enforcement agencies, and officials of family or domestic relations courts to carry out the program at the local level.
State Child Support Programs locate noncustodial parents, establish paternity, establish and enforce support orders, and collect child support payments. While programs vary from state to state, their services are available to all parents who need them.
If the Child Support Enforcement Program cannot locate the noncustodial parent with the information provided by the custodial parent, it must try to locate the noncustodial parent through the state parent locator service. The state uses various information sources such as telephone directories, motor vehicle registries, tax files, and employment and unemployment records. The state also can ask to locate the noncustodial parent. Data from the Social Security Administration, the IRS, the Selective Service System, the Department of Defense, the Veterans Administration, the National Personnel Records Center, and State Employment Security Agencies can then be collected.
Child Support Guidelines: Law & Legal Definition.
Child support guidelines exist under state laws, which vary by state, to require the non-custodial parent, under normal circumstances, to pay child support based on a percentage of net or gross income. Child support guidelines are based on income, not expenses. The percentage of support is calculated based on the total number of children for which a parent has an obligation to support. Some state guidelines provide an adjustment for work-related child care costs.
Child support guidelines are founded on the premise that children should continue to receive the same level of support that would have been available to them had the family unit remained intact. Child support guidelines are based on income, not expenses. The guidelines are typically mandatory unless the court makes a written finding on the record indicating that application of the guidelines would be unjust or inappropriate. Guidelines vary by state, so local laws should be consulted for specific requirements in your area.
Liens: Law & Legal Definition.
The right of lien generally arises by operation of law, but in some cases it is created by express contract.
There are two kinds of liens; particular and general. When a person claims a right to retain property, due to money or labor invested in that property, it is a particular lien.
Liens may arise in three ways:
1.By express contract;
2.From implied contract, as from general or particular usage of trade;
3.By legal relation between the parties, such as created with common carriers and inn keepers. When goods are delivered to a tradesman or any other, to apply his labor to, he is entitled to detain those goods until he is paid for such labor. When goods have been saved from the perils of the sea, the salvor may detain them until his claim for salvage is satisfied.
To create a valid lien, it is essential:
1.That the party claiming a lien should have the absolute property or ownership of the thing or, at least, a right to vest it;
2.That the party claiming the lien should have an actual or constructive, possession, with the assent of the party against whom the claim is made;
3.That the lien should arise upon an agreement, express or implied and not be for a limited or specific purpose that contradicts the express terms or the clear, intent of the contract.
Writ of Execution: Law & Legal Definition.
A writ of execution is a court order authorizing the seizure of an asset, such as of a noncustodial parent who owes past due child support. The order may be used to repay past due child support owed under the judgment. It is also refered to as a levy.
A Writ of Execution is a legal document which states who the money is owed to, the ‘judgment creditor’, and the amount of the debt.
When a writ of execution is attempted, notice will be served upon the judgment debtor, indicating details of the goods seized.
Garnishments: Law & Legal Definition.
Wage garnishment is a legal procedure in which a person’s earnings are required by court order to be withheld by an employer for the payment of a debt such as child support. Title III of the Consumer Credit Protection Act (CCPA) prohibits an employer from discharging an employee whose earnings have been subject to garnishment for any one debt, regardless of the number of levies made or proceedings brought to collect it.
Title III protects employees from being discharged by their employers because their wages have been garnished for any one debt and limits the amount of employees' earnings that may be garnished in any one week. It does not, an employee is only protected from discharge if the employee's earnings have been subject to garnishment for the first time.
Title III applies to all individuals who receive personal earnings and to their employers. Personal earnings include wages, salaries, commissions, bonuses, and income from a pension or retirement program, but does not ordinarily include tips.
The procedure to obtain a garnishment order is determined by state law. However, federal law determines how the garnishment order is applied to military pay, i.e., how service or process is accomplished, the type of pay subject to garnishment, etc. Less than the full amount ordered may be received by an ex-spouse under an alimony/support garnishment if the payor does not have sufficient disposable earnings to allow the deduction of the full amount. The Consumer Credit Protection Act (15 U.S.C. § 1673) limits the amount that can be deducted as child support/alimony from earnings. The limit ranges from 50 percent (50%) of disposable earnings to sixty-five percent (65%). The full ordered amount of child support/alimony will be deducted as long as that amount does not exceed the maximum percentage allowable.
There are different types of garnishments, as defined by state laws, which vary by state. A garnishment may be made on a one-time or continuing basis. For example, one jurisdiction provides as follows in regard to child support:
•"CSE has the authority to seize the income of a person ordered to pay child support to satisfy past due obligations by requesting the Court to issue a continuing Writ of Garnishment. Up to 65% of this person's disposable earnings may be taken depending upon the family situation and age of past due support.
•CSE has the authority to use a one-time garnishment by requesting the Court to issue a Writ of Garnishment with Notice of Exemption and Pending Levy. This is executed on non-income, personal property such as bank accounts for the payment of past due child support."
Some kinds of income are exempt, which means that they cannot be garnished at all by creditors for consumer debts. For example, welfare, unemployment, veterans benefits, Social security, workers' compensation, pensions, and child support payments that you receive cannot be garnished for consumer debts.
Please see the information at the following links:
http://dfsweb.state.wy.us/csehome/booklet/booklet.htm
http://www.child-support-laws-state-by-state.com/wyoming-child-support.html
http://www.child-support-laws-state-by-state.com/fathers-rights.html
