What Happens When There Is A Willful Violation Of Child Support Order

If there is a current order from the Family Court to pay child support or if the Family Court has "adopted" the Order from the Supreme Court divorce proceedings then the failure to pay child support may be determined to be more than just the creation of arrears but additionally a "willful violation" of a court order. Under NY law, the Family Court is directed to determine "willful violation" petitions within 30 days which includes the hearing and determination. The reason behind this is that for many years violation cases dragged on and custodial parents were not having the support order immediately or promptly enforced.

The NY law now is that there is a presumption that a violation has occurred when child support is not paid in accordance with a court order. The court then has to determine if the violation was "willful". If the court believes that the person who did not pay had the means or ability to pay then there will likely be a determination that the failure to pay was willful. If on the other hand the party who did not pay has a legitimate reason such as major illness, loss of employment, the child has changed residence and certain other somewhat limited reasons, the court may determine that there is money owed but that it is not a willful violation.

If the Child Support Magistrate after a hearing determines that the failure to pay child support was "willful" the Magistrate will in the decision set forth the facts and conclusions based upon the documentary and testimonial evidence at the hearing. The Magistrate will then refer the parties to a court date with a Family Court Judge who will then determine what the consequence shall be of the determination of "willfulness". The Judge could order that a certain amount or percentage of the arrears be paid that day or within days or the court can incarcerate the person for up to six months unless the amount of money set by the judge (the "purge" amount) is paid. So for example, if someone owes $30,000 the Judge could decide that if $15,000 is paid in one week the person will not be sent to jail. How much the purge is, how much time is given to pay will depend on the information given to the judge by both parties and/or their lawyers. Payment of the remaining balance also must be set.  So if it appears that the person has or can get the money the purge amount may be higher and the time to pay shorter.  If the two parties reach an agreement the judge will usually permit the resolution.  

If a person is sent to jail, when they are released they still owe the money.  So going to jail does not extinguish the debt.  So the main difference between only having a money judgment and a "willful violation" is that the money judgment by itself does not lead to incarceration, whereas the willful violation may lead to jail time.  The Child Support Enforcement Bureau can also suspend a driver's license, work or professional license, intercept tax refunds and seize a bank account among some of the ways of enforcement even without jail time.

Excellent matrimonial advocacy in these situations is needed by both the creditor and the debtor as there are nuances and arguments that both sides can present.