The Problem: Why Waiting to Take Action to Modify Support Can Hurt You
It’s a concept of vested rights. This is what you need to pay attention to here. Alimony or child support payments become a vested right of the other person once they become due, if there has not been the right lawsuit filed to invoke the court’s jurisdiction to modify the payments.
So what the heck does this mean in plain English? If you don’t pay the support and the due date passes, and you haven’t filed the right lawsuit, the support payment becomes a vested right of the other person. And a vested right is bad news when you cannot afford to pay.
As an example, say you lost your job and you’re paying $5,000 a month in alimony or child support. And it comes due on the first day each month. Say you lose your job in March, and your next payment’s April 1st. And before that payment comes up, you’ve lost your job and you cannot afford to payment. April 1st comes and passes. You don’t pay the required 5,000 a month in support. At this point in time, the $5,000 you did not pay is a vested right of your former spouse or the other parent. Once the support becomes a vested right, it means you cannot get out of paying it. There is no exception to this. Vested means the other person has the right to it, and that doesn’t change.
And if you’re thinking to yourself as you’re hearing this, “But I lost my job and I can’t afford to pay.” Well under the law, that doesn’t make a difference. A vested right means you can’t get out of it. The payment is vested.
And then you think yourself, “Well if I have to, I guess I’ll have to file for bankruptcy. I don’t want to do that. But if I have to do it, it’s the only way I’ll get rid of the payments that way.” And no, bankruptcy wont help you either. Bankruptcy does not allow you to discharge alimony or child support payments that are vested in the other person. In bankruptcy lingo this is called a domestic support obligation. And that’s not dischargeable in bankruptcy. This means that these payments are not going away once they become a vested right.
And here’s another thing. Vested rights can be enforced in family law through all kinds of ways. And once the support payments have vested, the person who’s owed the support can seek contempt of court or enhanced garnishment remedies that don’t apply to collections of most other types of debts. In a contempt of court proceeding, the court can give you the choice of liquidating assets to pay the past due support or going to jail.
Prefer to read a book about this instead? Click here to access our free book on modification of alimony and modification of child support due to the CoVid 19 pandemic and click here for our modification of support information center. Also, you can click here or the “Schedule Your Consultation” link above to speak with one of our lawyers concerning your particular situation.
Pay or go to jail. Can you imagine that? Judges work very hard to be fair, but in many instances their hands are tied with this stuff. If the support’s a vested right, the courts are supposed to enforce collection of the money, and not determine whether if it’s fair for you to owe the money in the first place. And that’s the big problem here for you if you bury your head in the sand.
And you might not end up in jail, but the courts can and probably will enter an income withholding order that can deduct at a maximum up to 65% of your wages from your next job.
This can be crippling. Think about it for a second. If you lost your job and taken a big income hit, and you’ve been out of work for several months, maybe even a year. Getting reemployed isn’t the magic bullet. It’s just the start of getting back on your feet. That’s going to be hard to do if your wages are getting garnished up to 65% to pay the unpaid support that accumulated while you’re unemployed due to no fault of your own.
If this happens you’re really not going to have the ability to get back on your feet. And the federal law sets the garnishment caps, but it’s between 50 to 65% maximum depending on whether you’re single or supporting another person, and how far behind you are.
The perfect storm here is when you have a vested right of support and somebody files for contempt or enforcement. Say as an example, you lose your job in March and you can’t afford to make the payments and April, May, June, and July. And you get a job in early August and make the August payment.
You might think to yourself, if you hadn’t read this, “Hey look, I lost my job. I couldn’t to pay, and I started paying again once I got my job back. No harm no foul.” Well actually at this point based on the law, all of the missed payments, $20,000 in this example, are a vested right of your former spouse or the other parent. And they can take you to court over that in a contempt or enforcement case.
And the court can give you the choice of going to jail or liquidating your retirement assets or other creditor exempt assets in most cases to avoid jail. And if you have to make that choice, you’re probably going to end up wiping out a good portion of your assets to the extent you even have them, to stay out of jail. And if you don’t have any assets, the court can garnish your wages substantially. It can be pretty hard to support yourself if you have 65% of what you make after several months or more of unemployment going to the person that you owed the support to.
And the whole thing here is judges work real hard to be fair, but the court is not supposed to question whether it was fair for you to have to pay the unpaid support that added up when you were unemployed. The only discretion the court has is in determining how you pay the money back.
So the moral of the story here is that doing nothing can cause you a big problem. As much as the judges might want to cut you a break because you lost your job or had a decrease in income in the middle of a huge global pandemic, the courts have to follow the law. And the law says that unpaid support payments that pile up without a proper court filing are vested rights of the support recipient.
Click here to access our free book on modification of alimony and modification of child support due to the CoVid 19 pandemic and click here for our modification of support information center. Also, you can click here or the “Schedule Your Consultation” link above to speak with one of our lawyers concerning your particular situation.