A divorce can be one of the most stressful times in a person’s life. Even in a simple divorce, where there aren’t a lot of assets or debts to argue about, inevitably someone will find something to argue over. Divorces are messy, they can be overly drawn out, and in some cases they can be extremely expensive. When it’s all said and done, my hope for my clients is that the next time I see them it’s a chance meeting at Market Basket or the mall as opposed to in my office. However, this is not always the case.
One of the most contested issues during any divorce is the children, to include what will be paid in child support. Although there is a worksheet that identifies exactly what child support is supposed to be, attorneys will invariably argue either an increase or a reduction based upon any given set of circumstances. Even after the case has been adjudicated, and the divorce is granted, child support continues to be a bone of contention that brings couples back into court. This typically comes in one of two forms. Either one party is looking to have the child support modified, or the obligated party is not paying the child support they were ordered to pay. It’s this second issue that I will concentrate on in this blog.
I have clients who continue to come back to my office, informing me that the other parent is not paying the child support that they are required to pay…and I hear lots of reasons from the other side as to why this happened. “Life is hectic and I forgot.” “I don’t have the money to pay right now.” The term we use when this happens is that the other parent is “in the arrears.” They now owe back support on top of their current and ongoing obligation. When this happens, there are two options I will typically look at and discuss with my client, depending on how the divorce went.
If the divorce was fairly amicable, and the other side tried to cooperate to make things go smoothly, I like to try to negotiate and find a way to get the arrears caught up. There are two significant benefits to negotiating a resolution with the other party. First, and foremost, it keeps the attorneys fees down to a manageable level. The less time we spend in court, the better it is for your wallet. Second, you have not given up any rights if you try to negotiate first. The arrears are what they are. If the other side decides not to negotiate, or doesn’t follow through with the agreement, you still have the right to take them back to court for the full amount of support that is owed.
If the divorce was messy and litigious, then negotiations will typically not work. This brings up the other option…file a complaint for contempt and take the other side back to court. A complaint for contempt is essentially your request for the court to force the other side to pay the child support that is owed for your children, and courts have a lot of discretion to decide how to resolve these issues. The down side to filing a complaint for contempt is that you are now looking at a hearing in court, which now means attorney’s fees. Every time I file a complaint for contempt, I always ask the judge to order the other side to pay for my client’s attorney’s fees since, had it not been for their refusal to follow the judgment, we wouldn’t be there in the first place. Sometimes the judge will award attorney’s fees and costs, and sometimes they won’t. It always depends on who the judge is, how far in the arrears we looking at, how many times we have had to come before the judge to complain about child support arrears, etc. However, if the judge does award attorney’s fees, then that downside has now become a huge positive.
If your former spouse is not paying the child support they have been ordered to pay, you have options available to you. I invite you to sit down with us at the Law Office of Stark & Heiner to review your specific circumstances, and see what options you have available to you. After all, the only person who has rights is the person who knows what those rights are.
Law Office of Stark & Heiner
805 Turnpike St. Suite 101
North Andover, MA 01845