Enforcement of Maintenance of Child Support

A common question which clients have been asking deals with the enforcement of a court order to pay child support and/or maintenance. Once a Court issues an order, one would hope that the party to which the order has been directed would follow it to the letter. Unfortunately, this is not always the case. Sometimes, a party simply cannot afford to make the payments as ordered. This usually happens when there is a legitimate loss of income. On the other hand, sometimes people simply do not pay. If this is the case, your remedy may be to seek a contempt order.

The remedy of contempt is available to punish the defaulting party. Domestic Relations Law (“DRL”) allows the matrimonial court to invoke contempt sanctions of Article 19 of the Judiciary Law as a means of enforcing the directions contained in its orders and judgments. The contempt order is the most drastic form of relief because the consequences of contempt can be either a fine or incarceration. Thus, courts view this remedy as a tool of last resort and as such, the Court must first find that the default was willful.

Failure to follow a Court order and pay maintenance and /or child support does not conclusively prove that you are in willful default; however, it is prima facie evidence of willful disobedience. Once this presumption is established, it incumbent on the defaulting party to overcome this presumption and show that their failure was not willful.

Before the Court will find a party in default, it must be shown that payment cannot be obtained in any manner, i.e. income execution, entry of judgment etc. As mentioned, willfulness is linked to the defaulter’s ability to pay. If the defaulting party raises his/her inability to pay, there must be hearing to determine the facts and circumstances of that person’s inability to pay. The typical defense to default is the defaulting party’s loss of their job which creates a financial hardship. When this is the defense, the Court will look to see if the loss of employment was willful. If you purposely quit your job or do something which causes you to be fired, you may be held in contempt. The Court may find your willful loss of a job should not allow you to escape your financial responsibilities.

LEARNING POINT: Contempt of Court is a drastic tool available for those who willfully disobey the Court’s directions. If you are subject to such an order or you are the beneficiary of such an Order, there are things you can do to either enforce the order, or defend yourself from contempt charges. Adequate preparation is key. Call us for a free consultation and allow us to prepare the best possible case for your situation.

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