Non-resident parents may avail themselves of several methods for the payment of child maintenance, each with its pros and cons.
Parents may choose to agree among themselves to have the non-custodial parent pay the other directly. This may be done via money order, check, or cash. The custodial parent will need to keep track of the child support payments. In situations involving direct payment, enforcement is not automatic; therefore, the custodial parent may opt for a provision whereby the other parent's wages are garnished if payment is not forthcoming for a certain period of time.
This approach consists of deducting child support from the payor spouse's paycheck and sending it either to the state's Child Support Enforcement Agency or to the recipient spouse. The payor's employer must be notified of this arrangement, whereby he or she will be required by law to withhold child support payments from the paycheck, and a court date is set for the garnishment order. Parents should take note that the Consumer Credit Protection Act restricts the amount of wages that can be garnished to 1) up to 60% of an employee's earnings if the employee is not supporting another child or spouse and 2) 50% if the employee is doing so. For child support payments that are in arrears for a period exceeding 12 weeks, an additional 5% is subject to garnishment. Furthermore, garnishment is impossible where the parent is self-employed. For a small transaction fee, a program known as Expert Pay (http://www.expertpay.com) enables employers to submit an employee's income that has been court-ordered.
Alternatively, payments made be made through the state child support enforcement agency, which serves a dual purpose of collecting unpaid child maintenance payments and enforcing missed payments. Under this approach, the parents need not have contact with one another, and the custodial parent is spared the burden of having to maintain records. The non-resident parent may authorize payments to the agency via pay-by-phone (PBP); the funds are withdrawn from a checking or savings account. Payments may also be made online through programs such as e-childsPay, by direct debit, by way of a Deduction from Earnings Order which takes the payment directly from the payor's income, or by money order, cashier's check, or personal check.
Parents can agree among themselves to modify the child support amount and submit the terms to the judge for his or her approval. As long as the amount comports with the state's guidelines, it should pose no problem. In the absence of an agreement between the spouses, the non-custodial parent may ask the court for a modification on the basis of changed circumstances. As a general rule, the failure to pay child support in conformity with the child support order may result in contempt of court. In many states, a non-custodial parent may raise the inability to pay the amount of child maintenance ordered by a judge as a defense by proving the following:
To determine whether a lower amount is justified, courts tend to consider whether the party's changed financial circumstances are continuous, involuntary, substantial, material, and/or whether they were not foreseen or took place after the child support amount was set. Courts try to balance the child's interests with the parent's financial burden.
As a general rule, child support obligations cannot be discharged in bankruptcy. Pursuant to the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, a bankruptcy does not effectuate a stay on actions to modify or establish child support duties or to collect payments for child maintenance. A non-custodial parent may not utilize the bankruptcy process to discharge child support payments that are current or in arrears. Debts relating to the child's upbringing and welfare otherwise referred to as "debts in the nature of support", such as medical bills, may also not be discharged in bankruptcy. Additionally, child support debts take priority over the obligor's other debts.
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