As if it wasn't enough to be financially crushed by the worst economy in decades, if you are obligated to pay child support and willfully fail to do so, you can be on the receiving end of a criminal conviction.
Times are really tough. People are losing their homes due to foreclosure and seeing their jobs vanish due to a flattened economy that remains on life support. For those people obligated to pay support and haven't, there is the additional risk that they may suffer State or Federal prosecution if they are not paying their child support.
A recently published case on point United States v Davis (12/18/09) 8 Cir No. 08-3692(Riley) 2009 WL 4877587 determined that under the Child Support Recovery Act (CSRA) the government in prosecuting a parent for failure to pay child support need not show that the defendant was able to pay the total child support arrearage and willfully failed to do so but only that the defendant was able to pay part and willfully failed to do so.
In brief, father and mother separated in 1996. This relationship was a non marital relationship. Consequently,mother filed a request to establish fathers paternity and got a court order confirming he was the father of their two children as well as an order for father to pay child support.
Father seemed to always stay one step head of any income withholding order and kept changing jobs. By 2008, father owed over $52,000.00 in unpaid support. A federal Grand Jury handed down a two count indictment against father for violating CSRA for willful failure to pay his child support obligation. At the end of his trial, father was found guilty and sentenced to 2 years in federal prison and 1 additional year of supervised parole.
Father appealed the trial court ruling and sentence.The appellate court affirmed father's conviction. On review of the trial court proceedings, the appellate court felt the evidence was sufficient to establish willfulness because the defendant father could have paid more than he actually paid.
What does this all mean? The main message sent by the court is that if you owe any amount of support and fail to pay some if not all that you owe, then you could be convicted of a crime and face serious jail time.
If you owe support and can't pay it, take steps to work directly with the child support collection services to pay something on account of the support. If you are really in bad financial shape, you have to file a motion in the proper court to ask the judge to reduce your support payments and give you time to pay any arrearages.
Even though there is a cost for a skilled family law attorney to represent you on filing a motion to reduce support and negotiate support arrearages, the investment in getting the proper legal help may make the difference between freedom or jail. .
About Me
- Arlene D.Kock,Esq.
- Arlene D. Kock has been a family law attorney for over 33 years. Her Family Law practice covers all aspects of divorce and related issues. During the course of her years as an attorney, Ms. Kock has handled divorce, custody, child support, spousal support, contempt, domestic partnership terminations, prenuptial agreementsand post judgement motions. Her offices are fully equipped to handle domestic partnership terminations, marriage dissolutions and custody matters. She regularly appears in courts in the 10 Bay area counties and has represented clients on legal matters located in jurisdictions as far north as Cresent City and as far south as San Diego. Her general practice also handles plaintiff personal injury, general civil litigation, juvenile law and felony and misdemeanor criminal law. She is a member of the Alameda County Bar Association and serves on a number of the association's volunteer committees. Ms. Kock is also listed in Who's Who of American Law and Who's Who of Outstanding Women. You may reach her at her San Ramon CA office 925-743-8666.