The Importance Of Incorporating Child Support Provisions In A Court Order And Enforcing The Obligation

The law presumes that both parents of a child, regardless of whether they are or have been married, have an obligation to support their child. For this reason, Virginia awards child support according to statutory guidelines that must be paid monthly by the noncustodial parent (payor) to the custodial parent (payee).

Unfortunately, and for a variety of different reasons, payor parents sometimes fail to make their required payments or fall behind for a series of many months. In these cases, the payee parent must seek to enforce the child support Order. For many, this undertaking will seem difficult and time consuming. However, in Virginia, there are a variety of ways to collect unpaid child support. Payees can use the Department of Child Support Enforcement or file a lawsuit in the court that entered the child support Order. Though this depends on whether child support obligations have been incorporated by the court. Incorporation occurs when a judge accepts your agreement with the other parent and includes it in a court order.

INCORPORATION

It is essential to note that the following enforcement measures are only applicable once you have a final court order awarding child support, or a final judgment of divorce that contains child support provisions. This is critical, because many couples have worked-out parenting plans and divorce settlement agreements amongst themselves, with or without the help of an attorney, which governs the terms of child support. However, if you or your child’s other parent breaches such an agreement, you cannot immediately seek to enforce child support through the methods listed below. You will first need to go to court and obtain a judgment for breach of contract, as well as a child support order that governs future payments.

This is why it is so important to have your parenting plan or settlement agreement incorporated once you and the other parent have executed it. By incorporating your agreement into a final court order, a breach of the agreement also constitutes a violation of a court order and can be enforced in the following ways.

ENFORCEMENT

  1. Withholding Wages: Pursuant to Virginia Code Section 20-79.1, a court can order a delinquent payor’s employer to directly withhold a portion of the payor’s income. The amount withheld can include child support payments that are currently due as well as any unpaid payments. In order for a payee to obtain a withholding order, the payor must be at least one month behind in payments and a notice of arrears must be filed with the court.
  2. Liens: The Department of Child Support Enforcement (DCSE) has authority to pursue liens on behalf of payees entitled to unpaid child support. By filing a lien action in court, the DCSE can ensure that any money received by a delinquent parent from a court judgment is directly garnished to satisfy the child support obligation. In addition, the DCSE can obtain a lien on the payor’s bank account to garnish any money that is in the account.
  3. Qualified Domestic Relations Order: Retirement accounts are not frequently used to satisfy child support obligations. However, these accounts can be lucrative and one of the only assets owned by a payor. By obtaining a qualified domestic relation order (QDRO), a payee will be able to access the funds in a delinquent payor’s retirement account. A QDRO is a court order that requires employers to segregate a delinquent payor’s retirement account to pay a portion of that account to a third party – in this case, the parent entitled to unpaid child support.
  4. Interception of Tax Returns: Both State and Federal laws permit the DCSE to seize any tax return owed to a delinquent payor and apply those funds to any child support payments in arrears. However, if the payor filed a joint tax return (if he or she is (re)married to someone else) there will be a six-month delay to allow the joint filer time to claim his or her portion of the tax return.
  5. Suspension of Certain Licenses: Virginia law permits courts to suspend the driver’s, professional or recreational licenses of parents who have failed to pay child support. If a payor owes $5,000 or more in unpaid child support or is delinquent for a period of 90 days or more, the payee entitled to support payments may file a petition with the court asking that the payor’s driver’s, professional or recreational license be suspended. A Payor served with such a petition will have 30 days to pay the amount of child support owed or enter into a repayment agreement. If the delinquent payor fails to do so, the court can enter an order suspending the driver’s, professional or recreational license(s) until the payor makes a full or substantial payment towards the child support in arrears.

If you have a child support enforcement issue in Virginia, you should contact a knowledgeable family law attorney right away. The experienced family law attorneys at the DiPietro Family Law Group have decades of experience handling all types of family law matters and are here to help you.

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