I sometimes get asked what can be done about a parent who isn’t paying child support. It can be frustrating because there are sometimes different factors that explain why a parent is not keeping up with his/her duty to contribute to their’s food, clothing, and shelter. Sometimes this includes:
The parent changed jobs and the collection authority hasn’t been able to start withholding that parent’s pay;
The child support order is based on bad information and is completely out of line with the parent’s pay; or
The parent is purposely avoiding his or her responsibility to contribute to the child’s living expenses.
Of these categories, the latter is the most vexing because it is difficult to imagine why a parent would want their child to go without, even though the parent presumably has the means to meet the child’s needs. It is the latter category to which I will devote this discussion.
Three Times the Monthly Support Obligation
In cases of willful refusal to provide support (in spite of being able to) the court can use its contempt power to compel a parent to start contributing. A court punish a parent with a contempt order when a parent is in arrears in an amount greater than three (3) times his/her monthly support obligation. Minn. Stat. §518A.72, subd. 1. That punishment can include a jail sentence.
Contempt Finding Leads To Jail Sentence
According to Minnesota law, person who is found guilty of a contempt shall be punished by a fine of not more than $250, imprisonment in the county jail, workhouse, or work farm for not more than six (6) months. Minn. Stat. §588.10. But, how does the parent who is supposed to be receiving the child support, get a court to use its contempt powers?
Contempt Can Be A Lengthy Process
Once an arrears has accumulated to the point where three months worth of support hasn’t been paid, a recipient parent should consider filing and serving a motion for contempt, where a court hearing is scheduled and the obligor parent (the one who supposed to be paying) is ordered to appear and explain why he/she should be excused from failing to pay child support.
Assuming there is no dispute that a child support arrears exists, it is the burden of the obligor parent to prove that he/she has an excuse for not paying support. If there is an excuse, then an contempt order is not appropriate and no relief can be granted. If, however, the court finds that the obligor has the ability to comply with the support order, and still is making no effort to comply, the court can make a finding of contempt, and sentence the obligor to jail.
Stayed Sentence & Purge Conditions
Before sending the obligor to jail, the court will normally ‘stay execution of the jail sentence’, or basically hold the threat of jail time over the obligor’s head, to give the obligor some incentive to avoid going to jail. In order to avoid getting hauled off to jail, the obligor will be required to abide by certain conditions (called ‘purge conditions’) that he/she must abide by. Normally these conditions include paying the original support amount, plus an additional amount to begin to pay back the arrears. And, if after period of time there is change in circumstances (i.e. changes in the obligor’s income; failure to pay the amount ordered) a court can adjust the purge conditions, if needed to compel payment or to accelerate paying off the arrears.
Finally, after several court appearances and opportunities for the obligor to avoid going to jail, ongoing failure to abide by the purge conditions, will result in the obligor serving his/her jail sentence.
While not an efficient remedy, a contempt can be a powerful way of compelling a parent to fulfill his/her duty to support their child. It therefore is important to have a clear understanding of the process, and to know whether the facts of your case merit a contempt remedy, before electing to pursue a contempt.
Contact Beyer & Simonson
If you are facing divorce and any of the divorce-related issues such as spousal maintenance, child support, child custody, property division, or domestic abuse matters, you need our experienced Minneapolis divorce attorneys to help you. Contact Beyer & Simonson in Edina, Minnesota today at (952) 303-6007.