By: Curtis Wiberg
In Part 1 of this article, I wrote generally about the consequences of not paying Colorado child support. In this Part 2, I will discuss in more detail what a private attorney can specifically do to enforce a child support order, including contempt, garnishments, judgment liens, and garnishment of bank accounts. As I emphasized in the last article, if you’ve been ordered to pay child support for your children, it is not an obligation you should get behind on because the consequences can be severe.
The most commonly used enforcement technique when child support is not paid is contempt of court, pursuant to Colorado Rules of Civil Procedure, Rule 107. Under Rule 107, consequences can include up to a 180 day jail sentence and/or a fine for every child support violation. These are called “punitive sanctions” and are designed to purely to punish for noncompliance. “Remedial sanctions” can also be sought as part of contempt proceedings, including the paying of attorney fees. With remedial contempt, there is still the possibility of jail if the court determines an obligor continues to violate the child support order while having the present ability to pay it.
When representing the parent owed support (obligee) in a contempt proceeding, I usually recommend to our clients that they start with both punitive and remedial sanctions, so that their attorney fees can be awarded. If an obligor is found in contempt, even under a remedial sanction proceeding, the court typically orders the obligor to abide by a schedule of payments within the obligor’s ability to pay, with follow up review hearings, at which the court can assess and enforce compliance, with the threat of jail. Reviews can continue until the contempt is purged. The on-going threat of jail is a very effective tool for forcing an obligor into compliance. It is essentially, a “pay up or else” situation. The remedial contempt route also affords fewer protections to the obligor procedurally.
However, there are also situations in which where a habitually delinquent obligor needs to get the message through a punitive contempt, with the threat of a longer period in jail. Punitive contempt is described as “quasi-criminal” insofar as the “prosecutor” is the obligee (and his/her private attorney). Though punitive contempt proceedings are conducted before a domestic court Judge or Magistrate, a wide range of criminal constitutional protections also apply to the obligor, including the right to counsel and proving of the charges beyond a reasonable doubt. Punitive sanctions require proof that the obligor not only violated the court order, but did so in a manner to “offend the dignity of the court.” Again, each charge of contempt can carry with it a maximum 180 day jail sentence. For a habitual “dead beat” parent, the contempt sentences can be potentially severe. When faced with such severe consequences, paying your child support obligation is certainly the advised route to take.
A drawback of pursuing contempt for an obligee is that the process is slow. Once a contempt is filed, there has to be an advisement hearing no less than 21 days after the obligor is personally served with a contempt citation. After advisement, an evidentiary hearing regarding whether contempt was committed will take place. The overall process can oftentimes take 4 to 6 months. As such, other available collection remedies should be pursued, simultaneously.
As stated in Part 1, various collection efforts can also be implemented, including a wage garnishment which can take up to 65% of the obligor’s net wages. A judgment can also be obtained, reduced to a lien, and attached to property owned by the obligor. Delinquent Colorado child support judgments accrue interest at 12% per year, compounding monthly. Any house equity an obligor has built up can be seized to satisfy the lien or judgment at the time the house sells. Collection efforts too can be made on bank or other financial accounts, which can be fully seized to satisfy the judgment.
Again, child support judgments cannot be discharged through bankruptcy. Denver child support attorneys know that child support debt is something that can have lifetime consequences. Missing 12 consecutive months of child support can even be grounds for the court terminating parental rights if the obligee is remarried and the new spouse is wanting to adopt the child for whom the support order is issued. Colorado law has little tolerance for non-payment of child support. Likewise, child support problems will follow you from state to state and chances are you will ultimately be found.
In the final installment of this article, I will discuss what the government Child Support Enforcement Unit can do to enforce collection of support. I will also discuss what a private attorney can do in conjunction with the CSEU. Until then, consider getting your child support affairs in order.