Child support arrears refers to the amount of unpaid child support owed to a custodial parent. You fall into “arrears” when you fail to pay the full amount ordered. When you have a child support order, it is not a suggestion of how much to pay, but the amount you must pay. Following a court order is important, and especially when dealing with child support since the arrears grow with a 9% interest rate.
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How are Child Support Arrears Calculated?
Nothing can be worse than getting behind in your child support. Once the support obligation becomes due, even the judge cannot modify the financial obligation. It is imperative that you pay child support on time and never fall behind since the judgment (and each individual support obligation becomes its own judgment) grows at 9% interest. A smart parent who is holding the judgment, and believes that there is some collectability from the obligor, can sit on that judgment and let it grow into an incredible amount of money. These days, what investment is grows at a 9% interest rate?
Current child support arrears are calculated by determining the difference between what the noncustodial parent owes and what they have paid. Even if the court later approves a new child support order with a smaller child support obligation, it can only be applied to the date that you filed a motion to modify the support. It will not affect the arrears balance.
I recently took a case where the obligor had not paid support to his ex-spouse for a number of years. The arrears owed was one thing, but the 9% interest made catching up and being current on the support obligation impossible. Although he was paying $200 a month on the arrears he owed, the money was being applied to the interest and he was essentially never going to pay down what he owed. This type of scenario is the worst case possible and although of course, it was his fault for not paying the support in the first place, it seems unfair to have a life sentence of payments that he can never get rid of no matter how long he pays.
I Could Not Pay my Child Support Because I Lost My Job. Now What?
It is imperative that you file a motion with the court to tell the court that you have lost your job. The judge could abate your support for a while, or could modify the support obligation altogether. But, the last thing you want to do is pay nothing since that is how you accrue arrears. Some obligors borrow money from friends and/or family for their own living expenses to get by, and do not pay any support obligation. This is where you can fall not only into an arrears situation, but you could also be held in contempt of court for failing to pay the support.
Failure to Pay Child Support
Illinois will assess interest on unpaid child support, but you can also be required to pay the custodial parent’s attorney fees. Your ex can also ask that you be held in contempt, which can be avoided if you can demonstrate that the loss of your job was not your fault. If you do lose your job, make sure you are taking all steps to gain some sort of employment and keep track of your efforts. You will want to file for unemployment and once you receive it, you need to make it known to the court. Your support obligation will be modified to the amount received from unemployment and you will avoid the arrears problem.
If you still fail to pay, the court can take other punitive measures against you. Your driver’s license could be suspended, the state of Illinois can garnish any tax return or asset you have, like bank accounts, and can even take your home if you own it. Any asset you have can be accessed to pay back the child support amount. Your wages can be seized and other collection procedures could be started against you.
I Owe Too Much Money Now; Can I File for Bankruptcy?
Unfortunately, the answer is no. Child support is not something you can file bankruptcy for, but there are other options for you. First, you can ask the judge for a reasonable payback schedule so that you are not held in contempt. That gives some comfort, but the interest on unpaid child support will keep going and you find yourself never being able to pay it back. Second, you can always try and get an agreed order from the parent you owe the support to and see if an arrangement can be made. If you can pay a lump sum, the other side might be willing to reach a deal with you to pay less, knowing that they will get a lump sum amount. Lastly, make sure you calculate the support and interest you owe and do not rely solely on the other’s side’s calculations. A miscalculated support obligation can be very costly, so it is necessary to have someone on your side do the calculation to catch any errors.
Seek Legal Help If You Are Facing Unpaid Child Support
Running from unpaid child support is a losing battle. No one wants to continuously appear in court to avoid contempt. The best course of action is to explain to the court what happened and demonstrate that you want to make amends. A payment plan is your best option unless you can convince the other parent to make an agreement with you on the amount you need to pay. This obligation can haunt someone for years, however, so your best course of action is to remain current on your support obligation, and the minute you see that you cannot, file your motion in court and ask for relief from the court-ordered amount.
Contact Anderson & Boback today for a consultation with our experienced child support attorneys and get your questions answered about child support arrears.