In divorce and paternity cases, there are numerous state and federal laws requiring parents to pay child support for their children, and about as many laws for enforcement of court- order support obligations. In fact, failure to pay child support may cause legal penalties against you, ranging from losing a professional license to being found in contempt of court and ordered to jail. This blog covers four simple ways to avoid a child support arrearage and its legal consequences.
First, some parents pay child support directly to the other parent. This is always a mistake. Child support not paid through the clerk may be presumed to be a gift under the law if a dispute arises and it is tried in court. The Clerk’s record, on the other hand, is proof-positive that child support has been paid, how much has been paid, and when it was paid. If you are paying support directly, this is not supported by Indiana law and places you in unnecessary legal risk.
Second, in Indiana, a child is legally emancipated at age nineteen (19) in most cases.1 However, unless your income withholding order (“IWO”) is terminated the support taken from your check will continue, resulting in a significant overpayment to the other parent. This is very hard to get reimbursed if it has been spent by the receiving parent. So you need to evaluate your payment of child support before the age of nineteen (19) comes and passes. Remember, the payor-parent may still have to pay college expenses; the court has wide discretion as to what constitutes these expenses.
Third, sometimes a parent loses a job, has job change to a lower paying job, or has other legal bases to modify child support. A clear and stark example is where a paying parent is criminally convicted and goes to jail. This does not automatically terminate or modify child support. The paying parent MUST file a petition to modify his or her child support obligation. A trial court can only retroactively modify child support to the date a petition was filed. If weeks, months, or years pass, a significant arrearage will accrue and will be due and payable. There is no discretion for a court to modify support retroactively before the date a petition to modify child was filed.
Fourth, a parent is legally obligated to pay the child support as ordered. When financial stress occurs, some parents have a tendency to stop paying support altogether. Most courts consider this a willful act and contempt of court. Furthermore, failing to at least pay what you can afford increases the risk for an enforcement proceeding to be filed against you. In these cases, the court may order you to pay the other parent’s legal fees. It is always a mistake not to make a good faith effort to follow the court order by paying some child support. Practically speaking, it is much easier for a parent to pay down an arrearage when he or she has been paying some amount toward the child support order.
This blog is written by Dixon & Moseley, P.C. attorneys handle child support cases of all types throughout Indiana. This blog is provided for general educational purposes and is not a solicitation for legal services or specific legal advice. It is an advertisement.
