- by Ryan P Post
Child support payments are usually awarded to the custodial parent of a minor child to help with expenses associated with raising that child. Georgia law uses a child support calculation formula that takes the income and debt of both parents into account. The court-ordered child support amount is intended to equal the minimum amount the noncustodial parent would pay to support the child if they still resided in the child’s household. Unfortunately, it is not unusual for noncustodial parents to fall behind in their child support obligations. When this happens, they may find their life impacted by back child support laws and the unavailability of a child support arrears forgiveness program.
Understanding Back Child Support
“Back child support” is child support amounts set out in a court order that are owed but currently unpaid. It is also referred to as “child support arrearage” or “arrears.” Georgia does not currently have a policy in place to collect retroactive payments for the time prior to a court order being obtained. There is a small exception -- the court can award a certain amount of money to an unmarried mother for “birthing costs,” typically medical expenses, in an initial child support action. When child support is not paid, and no attempts are made to pay down the arrears, interest, attorney’s fees, and court costs can be imposed.
The longer the amount of child support goes unpaid, the more severe the penalties grow for failing to pay. There is no statute of limitations on back child support payment arrears in Georgia. Initially, the Division of Child Support Services in Georgia will use various collection tactics, such as wage garnishment and tax refund or lottery winning interception, to bring the account current. If these methods do not resolve the outstanding balance, once $2,500 or more is owed in back child support, noncustodial parents may lose their ability to maintain active licenses (driver’s, hunting, job-related, etc.) and be unable to receive or retain a United States passport. Back child support becomes a felony in Georgia when a person reaches the third offense for failing to pay or leaves the state. Once arrested for criminal nonsupport, a person could spend one to three years in prison.
After being arrested for failing to pay back child support, a noncustodial parent could find it even harder to earn the income necessary to resolve financial and legal problems. Having a criminal history for either misdemeanor or felony child support payment charges could negatively impact a person’s ability to gain employment or find a place to live. This lack of income has the potential to cause a vicious cycle of child support-related charges.
As opposed to Child Support Services actions, discussed above, a custodial parent can also bring an action for contempt against the non-custodial parent. This is common if the original order to establish child support was issued by a superior court, such as through a divorce or legitimation action. In such actions for contempt, the custodial parent can not only seek the child support amount owed but they can ask the court to award them interest on the balance owed. If the custodial parent hires an attorney to bring a contempt action against the non-custodial parent, they will also likely ask the court to order the non-custodial parent to pay their attorney fees and costs of litigation. They stand a good chance of the court awarding those fees and costs.
One reason the person owed the money might prefer to use a contempt action to collect past due child support is that, through it, the court has the power to incarcerate the non-custodial parent for non-payment and force them to make a “purge payment” to be released. The purge payment can be all or some of the court-ordered support balance owed. Think of it as child support bail -- the amount required to be paid to get out of jail. The non-paying parent stays in jail without any way to get out except to pay the purge amount.
Child Support Arrears Forgiveness
In Georgia, child support arrearage cannot be waived or even dropped by the custodial parent. The debt will continue to exist long after the child has become an adult. The only likely recourse a parent who owes child support has is to try to negotiate a repayment plan and, if eligible, through a child support modification action, seek a reduction in the amount of their obligation for [VT1] future payments.
If you are required to pay child support,
- keep a record of all child support payments you make to the other parent;
- never pay in cash;
- do not make “in kind” payment such as buying necessities or paying for gifts;
- bring a child support modification action as soon as possible if you suffer an involuntary loss of income and can’t afford your child support obligation. The sooner you bring a modification action, the sooner your payments may be reduced. Furthermore, the court does have the power to retroactively reduce the child support obligation to the date the modification was filed, but not to the date the involuntary loss of income occurred.
To help you understand what was discussed above, consider these two scenarios:
Scenario 1: The father is required to pay child support. Due to no fault of his own, he loses his job and can no longer afford the amount he was supposed to pay. He just stops paying child support. The mother brings a contempt action against him. She succeeds in her action and is awarded the amount of support owed and her attorney’s fees. The father is incarcerated by the judge and forced to make a purge payment on the child support owed in order to be released.
Scenario 2: The father is required to pay child support. Due to no fault of his own, he loses his job and can no longer afford the amount he was supposed to pay. His attorney files a modification of child support. Before he gets a hearing in front of the judge, he falls behind on his child support because he cannot pay the full amount, but he does pay as much as he can. At trial, the judge rules that child support should be reduced, but that the father does owe child support. The judge rules that, in addition to the reduced amount of child support, the father must pay a monthly amount to pay off the child support arrears he owes.
If you are having difficulty paying your court-ordered child support, consider reviewing your situation with a family law attorney. A skilled attorney at Stearns-Montgomery & Proctor can help you determine if modification or other options are available to help ease your burden. Contact us today to schedule a consultation so we can discuss your case.