This article explains what to do if the other party is not paying child support or spousal maintenance in your Washington divorce or family law matter. Your general timeframe for collecting on these unpaid amounts is 10 years, the statute of limitations for judgments. For child support, you have 10 years from the time the youngest child in the order turns 18. For maintenance, you have 10 years from the date each payment becomes due. You can renew for an additional 10 years by taking certain steps immediately prior (90 days prior) to the judgments’ expiration.
In the meantime they accrue post-judgment interest at 12% per year. That compares favorably with most investments. As a result, it might advisable to take no collection action on these past-due amounts for several years. The amount owed will increase sizably, and you might have an easier time collecting once the other side’s earnings or assets have had time to grow.
Once ready to take collection action, consider the remedies in this article. It lists them in order from most common to least.
There are remedies beyond the ones detailed here, but they probably are not worthwhile in comparison. For example, the remedies in this article do not include requesting assistance from criminal law enforcement, such as the police or prosecutors. Failure to pay child support is a gross misdemeanor under Washington State’s laws and can constitute a violation of federal law in some circumstances. Unfortunately law enforcement authorities rarely elect to take on these cases. They usually have more pressing matters and assume you have alternative forms of redress available. You can try contacting them though.
I. Request Non-Criminal Government Assistance.
Though law enforcement takes little interest in nonpayment of support, other parts of the government do. Often the first and best remedy is to contact DSHS or the US military.
1. Contact DSHS/DCS. DSHS stands for the Department of Social and Health Services, and it has a Division of Child Support (DCS). DSHS or DCS will take collection action on your behalf if you sign up for the agency’s services. It costs $25 per year, and the agency will collect maintenance as well as child support if you the obligor owes you both. The agency will not collect maintenance without an accompanying child support obligation.
Washington State child support orders often contain express provisions stating DSHS, DCS, or the state registry will be the payment intermediary or will take any necessary collection action. If so, you can obtain the agency’s services by providing them with a copy of your order. If not, you can still sign up for collection services by contacting the agency and filling out a few forms. This is fairly simple and almost never involves an attorney.
When you sign of up for DSHS child support collection services, all child support (and maintenance, if applicable) must be paid through the agency. The child support division keeps track of exactly how much the obligor has paid you and how much remains outstanding. Often everyone involved in the case appreciates having the government track these numbers, because it reduces conflict. More importantly to you, DSHS will automatically take steps to collect if the obligor fails to pay. Those steps can include garnishing the obligor’s wages, suspending his or her driver’s license, and even intercepting tax refunds. All told, $25 has never bought so much.
There are at least three sizable drawbacks however. Firstly, DSHS will use the support it collects to pay back the government for benefits you received, such as TANF (Temporary Assistance for Needy Families). That might mean you receive no child support or spousal support for a time.
The second drawback is that DSHS does not represent you. It represents the state’s interests. Sometimes that means the agency is less zealous in collecting than you or someone you hire. This is particularly true when the child support or maintenance obligation are unclear or subject to debate.
Thirdly, DSHS takes time to process paperwork and money. You might not receive child support for a month or two after DSHS becomes the payment intermediary.
2. Contact the US Military. The US military does not appreciate when its people neglect their obligations, especially obligations to children, spouses, and former spouses. If the obligor is in a branch of the US military and failing to pay support, consider contacting someone in his or chain of command. It costs you nothing and often results in an immediate change in the obligor’s behavior.
II. Motion for Contempt (& Clarification).
A motion for contempt is the next-best option, but it requires significantly more work and resources. It is not advisable to file a motion of this type unless the obligor owes many thousands of dollars. This is especially true if you intend to hire an attorney to assist you. Full representation in contempt proceedings usually costs at least a few thousands of dollars, and it would be impractical to spend as much as you seek to collect. Even if you do not hire an attorney, it probably would not be worth your time to represent yourself in a contempt proceeding over a relatively small support debt. Filing a motion can be surprisingly time-consuming.
A motion for contempt is a powerful tool however, especially when combined with a motion for “clarification in the alternative”. If successful, the court usually awards attorney fees (often less than you spend, unfortunately) and puts in place coercive measures that force the opposing party to comply. The motion can even result in the opposing party going to jail until he or she starts paying. This is why contempt is usually the first and only option family law attorneys offer their clients.
Click the link in this sentence for how-to instruction on motions for contempt and clarification.
For failure to pay child or spousal support, a party would generally file a motion for contempt in the county the county that issued the order, assuming one of the parties still lives there. Alternatively, you can file in the county where either of the parties lives, so long as they still live in Washington State. Moving the case to a new county would require registering it there and/or filing a modification proceeding there.
If other states or countries are involved, the Uniform Interstate Family Support Act (UIFSA) dictates where the motion should take place. Analysis of the UIFSA exceeds the scope of this relatively simple article.
III. Take the Money.
Another option is to take the money from the opposing party rather than forcing him or her to pay. Often it is preferable or necessary to take these steps in the state or country where the nonpaying party lives. This article provides an overview of these collection actions, because they are numerous and potentially complicated. Once you identify the action you intend to take, see Chapter 7 of the Washington Lawyers’ Practice Manual (WLPM) for step-by-step instruction. You can probably find the WLPM in your county’s law library.
1. Reduce to Judgment. Generally child support and maintenance obligations are judgments as they accrue. That is, the law says you do not need to “reduce them to judgment” – meaning get the court to sign a document stating exactly how much is owed – before taking collection action. Often you need to reduce them to a judgment anyhow, if you intend to take any of the actions listed below. This is for a practical reason. It ensures the court agrees with the amount of the judgment before you take the money.
2. Record the Judgment. Much like with a deed or mortgage, you can record a judgment with a county’s recording department. Doing so creates a judgment lien against the real estate the debtor owns in that county. Sometimes merely having the arrearages reduced to judgment is enough to create a lien against real property in that county, but taking the additional step of recording the judgment is better practice. For example, recording the judgment is the only way of ensuring the lien attaches to real estate qualifying as the obligor’s primary residence.
3. Garnishment. Garnishment means to take money directly from the debtor’s paycheck or bank account.
4. Debtor’s Examination. Like it sounds, requesting a debtor’s examination forces the debtor to appear and answer your questions about his or her income and assets. Usually you take this step only if the other party owes you a substantial amount, because the process is time-consuming. But it has its decided benefits as well. Failure to cooperate can result in arrest. If done properly, you can take valuables off the debtor’s person, such as cash or a valuable watch. And a debtor’s examination is a prerequisite to the next step, execution on assets.
5. Execution. Execution is the legal term for selling assets to pay a debt. The process is rare and only worthwhile if the opposing party owes you substantial amounts and has substantial equity in property.
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