If you have an order for spousal or child support and the other party has fallen behind on their payments, you may take legal steps to enforce your rights.
First, you should decide whether you want to hire an attorney or seek help from a government program. The Oregon Department of Justice has a Division of Child Support that can help you enforce your support order. Your local district attorney’s office may also be able to help. One advantage to hiring a private attorney is you will be able to make decisions on how you would like to enforce your rights. A disadvantage is that you will have to pay the attorney’s fees. (Sometimes the court may order the other party to pay your attorney’s fees, but you should not assume that will happen.) Also, most attorneys will ask that you deposit an initial retainer with them for legal fees and expenses.
If you choose to have a child support enforcement agency handle your case, you will generally not have to pay a retainer or legal fees. There may be other fees, but they should be relatively small amounts. You will pay less if you use a support agency, but you will have less control. The enforcing agency will decide how to enforce your rights and how the matter is resolved. To apply for services contact Oregon Department of Justice Division of Child Support. If you have a child support case and a spousal support case the division may help you with both cases.
Note that some agencies will not pursue spousal support unless they are also pursuing an award of child support. That is also true if the person who is owed money is receiving certain types of public assistance. If you only have a spousal support order, your only option may be to use a private attorney. You should ask the enforcement agencies directly about their specific policies.
One way to collect unpaid child or spousal support is to ask that the payments be taken directly from the wages of the paying parent or spouse. This requires a wage-withholding order, which is issued either by a court or by a child support enforcement agency. In support cases handled by a support enforcement agency, it is almost always the agency that will issue the order.
When a wage withholding order is issued, money will be taken from the wages of the person who owes support. If that person owes past support, the amount taken is usually 120 percent of the current support payment amount -- up to no more than 50 percent of the paying person’s income. For example, for a monthly support order of $100, the amount taken will be $120 — $100 for the current support and $20 (or 20 percent) for the back support owed. Once the back support has been paid off, just the amount of the current monthly order will be taken out. The maximum of 50 percent of the paying parent’s income will still apply. If only back support is owed, the amount withheld will vary on the circumstances of the case. It will usually be whatever the last ordered payment amount was, until the back support is paid in full.
Once income withholding is in place, it continues as long as support is owed. If the paying parent changes jobs, the order will follow them to any new job that the support enforcement agency knows about. If no support agency is handling your case, a lawyer can help you make sure a new employer is given a copy of the withholding order. Income from workers’ compensation and unemployment benefits can also be withheld for current and back support.
A support enforcement agency can help you to arrange income withholding. If your support is not currently routed through the state, contact the division of child support for this service. If you are having an enforcement agency handle your case, there will be a $25 fee for each year the agency collects more than $500 for you. Note that it may take some time for this to be set up. It can involve lengthy interactions between the agency and the nonpaying spouse’s employer. It is best to contact the agency as soon as possible to set this up. A lawyer may also help you arrange income withholding, although you may be responsible for the lawyer’s fees and expenses.
The state has some powerful tools in enforcing child support. If a parent owes at least $2,500 in back child support, the state or district attorney has several methods of collection. If the parent who owes support has a license issued by the state, the district attorney or division of child support can suspend that license. This includes occupational licenses, driver's licenses and more. They may remain suspended until the back support owed (the “arrearage”) drops to $2,500 or the person who owes support agrees to a repayment plan. That person’s passport may also be revoked or restricted in cases where a parent owes at least $2,500. The support-owing person may also be reported to credit reporting agencies. Finally, the district attorney or child support division may withhold a tax refund to pay a child support arrearage. Note that only the district attorney and the division of child support can take these measures.
There are several other things that the district attorney, the division of child support or a lawyer can help you with. One is garnishing the bank account or other sources of money of a person who should be paying support. Placing liens on the real property (land or buildings) and personal property owned by the person who owes support is another way. A lien might mean you can receive some or all of what you are owed when the land is sold.
Both the district attorney and a private lawyer may file contempt of court charges for failure to pay child support. A contempt case requires filing documents with the court for a hearing to decide whether the paying party violated the order to pay support. If the judge finds that the person willfully disobeyed the support order, sanctions could be imposed. He or she could be ordered to spend time in jail as punishment, or to pay all or part of the back support by a deadline to avoid going to jail. In most cases, the judge will also require the nonpaying person to take classes, and to work out a plan to pay back the arrearage. If you contact a private lawyer for this matter, you should make sure that duplicate contempt cases are not filed.
If the person who owes you support lives in a different state, the Uniform Interstate Family Support Act controls some aspects of where and how to recover back support. Depending on your case, legal proceedings might have to be held in the state where the paying parent lives to collect the back support. The child support agency or a lawyer can help you with this. Know that dealing with other states can be a long process. You will need to provide information and cooperate with the enforcing state.
During support enforcement proceedings, you may have to state under oath how much money the other parent has paid and how much they still owe you. It is very important to keep accurate records of all support payments. Include the date of all payments, the amount of the payment, and the form of payment — for example, by personal check or money order.
When an enforcement agency handles your support case, the payments go through the state of Oregon. The state keeps computerized records of the payments. (This is why it is often easier to have your support case handled by the district attorney or the Oregon Department of Justice.) The state agencies automatically begin some enforcement actions based on their records. If your case is being handled by a support enforcement agency, it is very important that all payments go through the agency. Otherwise, the paying parent may not get credit for payments made. If your support payments go through the state, make sure you know if the child support agency is also doing enforcement for you.
If one of the parents is a service member on active duty, the court may be required to “stay” any proceedings. That means the case will be put on hold until the service member is available to come to court. You should probably consult an attorney if this applies to your situation.
Legal Editor: Alexander Roome, December 2020