Divorce FAQ's

Ability to Pay Hearings

1. How is a child support order enforced?

When the parents of children live apart, the court often orders the non-custodial parent to pay child support to the parent who lives with and cares for the child. The payments must be made on a regular basis, such as every two weeks or every month. When a non-custodial parent fails to pay child support for two weeks, or when the unpaid amount equals the amount that should have been paid for two weeks, the Probation Division of the Superior Court is then required by law to take action to help the custodial parent receive the child support owed.

To accomplish this, Probation first files with the court a statement of facts that describes how the non custodial parent is disobeying the court’s order for child support. Next, Probation files an application called a motion in aid of litigant’s rights. This type of motion objective is to force the non custodial parent to pay the child support owed.

2. Is a non-custodial parent entitled to an opportunity to explain why he or she has not paid child support?

Yes. Before a non-custodial parent can be sent to jail for the nonpayment of child support, the law requires that he be given notice of a hearing about his ability to pay the child support arrears that are due. A judge or a hearing officer listens to testimony and considers evidence to determine if the non-custodial parent has the ability to pay the required child support. If the court finds that the non custodial parent does not have the ability to pay the outstanding arrears, then the court may modify the child support order.

However, if the court finds that the non-custodial parent does have the ability to pay child support and if he is willfully refusing to do so, then the court will have a vast array of sanctions and penalties that it can use to “encourage payment.” The court can immediately issue a bench warrant for the arrest of the non-custodial parent. The court can also issue an order that places the case on bench warrant status. Placing the case on bench warrant status means that, if in the future the non custodial parent is at least 14 days behind making child support payments, either Probation or the custodial parent may ask the court for a bench warrant without giving notice to the non custodial parent.

3. Are there other ways to enforce child support orders besides sending deadbeat parents to jail?

There are other ways that the court can enforce child support orders, in place of sending the nonpaying parent to jail. Among these alternatives are:

  1. Taking money directly out of the paycheck of the non custodial parent. This procedure, known as “income withholding,” is almost always ordered in a child support case except in situations where the non custodial parent does not receive a paycheck (for example, the person is self-employed).
  2. Forcing the sale of real property (a house or land or other building) and using the proceeds from the sale of that real property to pay the child support that is owed.
  3. Forcing a non custodial parent to pay outstanding child support by requiring that the child support judgment be paid out of the net proceeds of any lawsuit award or settlement.
  4. Denying, revoking, or suspending recreational licenses (for example, licenses to fish or hunt), occupational licenses (for example, licenses to cut hair or provide physical therapy or practice law), or driver’s licenses.

Until the Administrative Office of the Courts has a system for appointing lawyers to non custodial parents who face incarceration for failing to pay child support, then Probation or the custodial parent may have no choice but to ask for these alternative enforcement measures.

4. Can I be arrested and then incarcerated because I have not been paying my child support?

Yes. The threat of incarceration is perhaps the most effective means to “convince” a payor to comply with his child support obligations. The incarceration for the refusal to comply with obligations established by a child support order is authorized pursuant to Rule 1:10-3, and Rule 5:3-7. This type of proceeding is called a proceeding for relief to litigants. These proceedings are also called a contempt hearing, an enforcement hearing, or a purge hearing.

In order to coerce the payment of child support by a non-custodial parent who has become delinquent in the payment of his court ordered child support, the court may convene a hearing to enforce litigant’s rights under Rule 1:10-1. At a contempt hearing there must be a determination of the noncompliance with the child support order. Moreover, the court must also determine the extent of the payor’s noncompliance with the child support order.

5. What are the factors that the court takes into consideration when it determines if there has been a noncompliance with the child support order?

  1. The prior compliance with the provisions of the child support order over a significant period of time.
  2. The age of the child support order with the self-executing warrant provision. If applicable, whether the payor has been regularly paying since the provision was ordered.
  3. Whether or not some payments have been received.
  4. Whether the payor spouse has filed a Lepis motion for a modification of child support.
  5. The amount of the unpaid child support arrears.
  6. Any known delays by Probation in posting any child support payments.
  7. The age of the child or children on the child support order, and the likelihood that a child age 18 or order may be subject to emancipation.
  8. The enforcement history of the case.
  9. Are there any pending civil settlements whether the payor anticipated a significant monetary award or personal injury settlement.
  10. Payments are being received through an income withholding order.
  11. Any other relevant information about the case.

6. How and when are child support enforcement hearings scheduled?

Probation will file a motion that alleges that the payor is in arrears for his child support payments. The motion will be sent to the payor by certified mail, and it will clearly indicate that if the payor fails to appear at the court on a specific date and time, then a bench warrant will be issued for his arrest. The payee or the parent who receives the support will also be notified of the court date. Her appearance is not required for the enforcement hearing to be conducted.

At the enforcement hearing, the payor will then be required to respond to the allegations of being a “deadbeat” dad as contained in the motion. The court will then allow the payor to present any meritorious defenses. The court must then make a finding as to the validity of these defenses, and the payor’s ability to pay child support order. At most hearings the court will then issue an order that commands the payor to make an additional payment, or to make a series of periodic payments to pay down the arrears. The court may also include in the order that if future payments are missed, then a warrant may be issued without any further notice to the payor. The purpose of such a warrant is to give the payor some additional incentive to pay his child support. These types of orders are also referred to as “Future Missed Payments” orders, and they usually provide for the issuance of a warrant when the payor has missed payments with a dollar value equivalent to two missed payments.

7. I have just been arrested for not paying my child support. I am now incarcerated at the County Jail. When will I get my “ability to pay hearing”?

All arrested payors should be seen by a judge as soon as possible. That means the same day or the following day, unless a weekend intervenes or if there is no judge available. In no case should it take more than seventy-two hours for an arrested non-custodial parent receive a hearing. When a payor has been arrested to appear at an enforcement hearing, then he is entitled to an expedited hearing date. The hearing must be held no later than 72 hours after his apprehension. The 72-hour maximum is intended for situations where the payors are held over weekends at the County Jail. It is otherwise expected that the payor will usually be brought before the judge within two days.

8. Is there any possible way that a payor can be released early if he is picked up on a warrant for the nonpayment of his child support obligations?

A payor may eliminate the need for the hearing by simply acknowledging his noncompliance with the child support order. Moreover, the payor must come into compliance with the child support order. Basically, the payor can pay the full amount of the child support arrears, or he can pay a significant portion of the arrears. The warrants that are issued to compel the appearance at an enforcement hearing almost always specify the amount of the arrears that the payor must pay to be released. This amount is referred to as the purge amount or the release amount. If the payor pays this amount, then it will be applied to his child support arrears. The payor will then be released, and the enforcement hearing will then be canceled.

9. I just can’t keep up with my child support payments. My arrears are now $10,000. What are my legal rights to avoid going jail? Can I avoid being picked up by the Sheriff’s Department on a bench warrant?

If a non-custodial parent fails to pay his child support, and if the arrears accrue to a substantial amount of money, then eventually an arrest warrant will be issued. Once the non-custodial parent is arrested, then he is then immediately taken to the local County Jail. The payor then has the right to have an enforcement hearing to assess whether he has the ability to pay his child support. These hearings are called by several different names; “Ability to Pay” Hearings, “Purge Hearings,” “Contempt Hearings,” and “Pay or Stay” hearings.

If the court determines that the payor has the ability to pay, then the court has a very powerful coercive remedy that it can use to force payment. The court may order that the payor shall be incarcerated. If the payor is jailed, then he can only be released if he pays the arrears or a portion of the arrears. In most cases, the court will set a purge amount. This means that the payor can be released from the county jail if he pays a certain amount of the child support arrears. For instance, if the child support arrears are $10,000, then quite often the court will set a purge amount of $2,000. Once the payor or his family or friends pay the $2,000 on the behalf the payor, then he can be released. The court will then set a reasonable payment plan for the payor to pay down the additional arrears. If the payor complies with the court’s repayment plan, then no further bench warrants will be issued. However, if the payor refuses to “work with” the court, and if he “blows off” the repayment plan, then a new arrest warrant will be issued for his arrest.

If a payor refuses to comply with a court’s child support order, then he or she is entitled to a full “Ability to Pay Hearing.” The payor may allege that the court grossly misunderstood his income and/or expenses. The payor also could allege that due to a recent “change in circumstances” he is no longer able to pay the child support. The court will set aside a special day to conduct the “Ability to Pay Hearing.” If the court finds that the payor has the ability to pay, then the court may incarcerate the payor until full or partial payment of the arrears are made.

10. What are the legal standards that the family court uses to decide an “ability to pay hearing”?

The court must assess the ability of the person’s ability to pay child support. Moreover, the court must demonstrate on the record that the defendant has the ability to comply with the child support order. The obligor or the person who has to pay the child support, must prove by “clear and convincing evidence” that he does not have the ability to pay. Clear and convincing means that the court must have a firm belief or conviction as to the truth of the allegations. This standard is in the middle to the “preponderance of the evidence” standard and the criminal standard of “proof beyond a reasonable doubt.”

11. What does the payor have to prove at an “ability to pay hearing”?

The payor must prove that he does not have sufficient income to comply with the child support order. If the payor is a wage earner, then he should bring his W-2 and pay stubs to court. Quite often the pay info of the payor is conclusive proof that he does not have the ability to comply with the terms of the child support order.

If the payor was fired or laid off from his job, then he should bring any termination papers to the court with him. Moreover, if the payor is now receiving unemployment compensation, then he should bring a copy of his unemployment application to the court, and copies of any unemployment checks. The more interesting “ability to pay” cases are when the payor is self-employed. In the world of family law, the new rage is for the courts to impute income to the self-employed non-custodial parents. For instance, if a father owns a landscaping business, quite often the non-custodial parent will allege to the court that his business only earns $50,000. Meanwhile, the ex-wife will allege that her ex-husband is earning a six-figure income, and that he is hiding thousands of dollars in cash. The courts often impute income to the payor, and then calculate a child support award based on the amount of income that an average landscaping business would earn. In some cases, the concept of imputing income solves many problems in ongoing child support disputes. Meanwhile, in other cases the concept of imputing income creates an utter disaster for the payor.

If the court imputes too much income to the payor, then he must pay an inflated and inaccurate child support award. It is important to emphasize that being self-employed is a very challenging way to earn a living. Most judges were never self-employed themselves. Some judges can fully understand just how difficult being self-employed can be. Meanwhile, some judges simply “go by the book” and impute unrealistic income to self-employed payors. Unfortunately, many judges fail to take into consideration the real life considerations of being self-employed.

In summary, if the payor is self-employed, then he has a more difficult burden to prove to the court that his income has decreased, and that the money his business has made in the past is no longer available. The payor has the burden to prove to the court that his business has changed, and that the same income is not available. A self-employed payor should bring all evidence to the court to prove that his business income has decreased. If possible, the self-employed payor should have his accountant or bookkeeper testify at the hearing. Any documentation that proves that the business is failing should be produced. If any equipment has been repossessed, then the repo papers should be given to the court. If the business has any overdue bills then they should also be produced for the court. If there are any past due tax bills, then these documents should be provided to the court. In summary, any type of documentation that proves that the business is in a slow cycle, or that the business is failing should be produced to the court.

In many cases, a payor may have experienced health problems that caused him to miss work. A payor can argue to the court that his health problems have made it impossible for him to pay his child support. The payor should produce any medical records or doctor reports to court to bolster this defense.

12. My ex-husband owns a home improvement company. He alleges that he only earns $50,000 per year. However, during our marriage we were always awash in cash, and he really earns $150,000 to $200,000 per year. At the “ability to pay hearing” my husband is alleging that his business is failing, and that his business income has drastically been reduced. How can I prove him wrong at court?

In many “ability to pay hearings,” the payee alleges that the payor makes most of his money in cash. The payee alleges that the payor has plenty of non-reported income. The payee spouse often alleges that the lifestyle of the payor is not consistent with the income that he alleges to earn. The best way to prove that a payor is hiding money is to prove expenditures for “high end” living expenses. A payor may use a travel agency, a favorite jeweler or a fancy department store. If the payee can establish a cash payment for a luxurious expense by the pay, then this can help prove that the payor is hiding his income. In summary, a recorded expenditure of a luxury item can be strong evidence that the payor is under reporting his income.

13. I have lost my job and my income has been reduced only to my unemployment check(s). Fortunately, I do own my own house, and I have a decent sized 401K plan. Will the court order me to liquidate my assets at an “ability to pay hearing”?

The family courts are simply relentless in their efforts to enforce the child support laws. If a payor has no income to pay his child support obligation, then the court may force him to liquidate any assets to pay the child support obligations. If a payor has no available income to pay child support, and if the children are starving, then a court may very well be persuaded to order that the payor liquidate any 401(K) plans, IRA’s, or other pension plans to pay the child support obligations. The down side of liquidating retirement plans is that there is a 10% penalty imposed by the IRS, and there is a 20% withholding tax that must be applied. Basically, if a payor withdraws $10,000 from a 401(K) plan, then the plan administrator must withhold 30% of the amount that is being liquidated. Therefore, the payor will only net $7,000 after all of the taxes are taken out. Nonetheless, if this is the only source of money available to the payor, then a court may still order that a portion of the retirement account(s) be liquidated to pay off any child support arrears.

Additionally, a court can order that nonessential assets, such as bank accounts, stocks, bonds, Quads, motorcycles, stocks and bonds be sold and liquidated.

In my experience most courts are very reluctant to order a non-custodial parent to liquidate or sell their home to pay off child support arrears. However, the court may order the payor to take out a home equity line of credit to pay off some arrears. In many nasty child support arrear cases the payor often transfers his home to a relative to avoid having child support liens placed on the title of the home.

14. I simply do not have enough money to pay my bills? Is this a strong argument to raise at an “ability to pay hearing”?

New Jersey is one of the most expensive states to live in. The property taxes in the Garden State are the most onerous in the land. It is no wonder that many hard-working men have a very difficult time keeping up with their child support payments. At many “ability to pay hearings” the payor raises the argument that he simply does not have enough money to pay all of his bills. Many payors simply have limited income and assets. Therefore, the payor often has to make very difficult choices. The payor has to pay the mortgage, car bills, credit card bills, and support his current family. After all of these bills are paid, quite often there is no money left over to pay for the child support.

The payor may receive some sympathy from the court if he can document all of his expenses. Ultimately, the court may advise the payor to file a Lepis motion to seek a reduction of child support. For these arguments to be valid, the payor must prove that his elective payments were absolutely necessary, and that the nonpayment of these bills would cause him irreparable hardship. Such examples of essential bills would be payments to prevent the foreclosure of the home, or a repossession of a vehicle. Moreover, a payment to save a business may sway a court to grant a payor some relief.

15. Do I have the legal right to have an attorney represent me at an enforcement hearing?

A payor who faces jail time for his noncompliance must be advised of the right to have legal counsel. If the payor has no money to hire a lawyer, then a lawyer must be assigned on his behalf. If the payor is found to be poor, then the court should appoint a lawyer to represent him. However, at this time no publicly found counsel is available to represent the indigent in child support enforcement hearings.

I would advise all non-custodial parents who are arrested for the failure to pay child support to immediately request that the court appoint legal counsel to represent them. The bottom line is that the family court system is not geared up to accommodate this request, and also to satisfy the mandates of the seminal Pasqua case. Therefore, many courts will immediately release a non-custodial parent once the request for counsel is made. The non-custodial parent should argue to the court that if my request for counsel is not granted, then my incarceration is unconstitutional, and that I should be immediately released.

16. What arguments can I make to the court to persuade the judge not to incarcerate me for failing to pay my child support obligations?

The main argument that should be made is that incarceration would only serve to punish the payor, and not coerce him to pay child support. Before the court can issue an order to incarcerate the payor, there must be a finding that the payor has the current ability to make the child support payments. The main point is that a court can only incarcerate a payor for the purposes to coerce him to make future child support payments. The court can not incarcerate the payor for his noncompliance solely to punish him for his missed payments. The incarceration provisions under Rule 1:10-3 are intended to be only coercive in nature, and not punitive. It is essential that the payor must be found to have an ability to pay an amount of child support acceptable to the court at the hearing. Therefore, the payor has the “keys to the cell” and incarceration is considered to be coercive. If the payor does not have the ability to pay, then incarceration is not available as a form of relief. Consequently, the incarceration would be viewed as punitive in nature and it would be unconstitutional.

The court may also release the payor on condition that he make certain child support payments or satisfy other conditions. Some examples of these conditions of release include; a) requiring the payor to seek employment and then report back to the court on those efforts; b) requiring the payor to apply for unemployment benefits c) taking action to provide health care coverage for his children. Most commonly, the form of relief requires the payment of money by the payor.

17. I have just had my enforcement hearing, and I explained to the court how I can’t afford to pay my child support obligations. Nonetheless, the court still sent me back to the County Jail. When will I get another court hearing to plead my case, and to request that I be released from jail?

When the court orders the incarceration of a payor, the court must bring the payor back before the court every two weeks. The court must then consider the particular circumstances of the payor and whether incarceration is still an effective means to coerce compliance. It is important to emphasize that the payor should argue that his continued incarceration is punitive, and it no longer has a coercive effect. Illustrative is the case of Marshall v. Matthei, 327 N.J. 512 (App. Div. 2000). Here the court held that since incarceration is coercive rather than punitive, a party must be release when the coercive purpose is deemed to have failed and continued incarceration would only be punitive.

18. My ex-husband has been arrested at least 20 times for failing to pay his child support obligations. Are there any other types of criminal charges that can be filed against him?

If a payor is a persistent deadbeat, and if the threat of arrest and incarceration does not coerce the payor to make his payments, then the case can be referred to the County Prosecutor. The County Prosecutor can review the case to ascertain if any criminal charges should be filed. The County Prosecutor may then decide to file charges of wilful non-support. The County Prosecutor may pursue criminal charged under N.J.S.A. 2C:24-5. This is a fourth degree criminal offense.

There are five main elements that the state must prove in a case for the criminal prosecution of wilful non-support. The state must prove the following: a) The defendant is legally obligated to support a spouse; b) The defendant failed to pay the child support; c) The defendant was able to pay the child support; d) The defendant knew he was legally obligated to pay the child support; and e) The failure to pay the child support was wilful.

The accused is then entitled to legal counsel to be assigned. The accused may also be entitled to a trial by a jury and if he or she makes this demand, then the court rules required that the prosecutor to be transferred from the Family Part or to the Law Division. A person who is convicted of a fourth degree crime may be sentenced to a prison term not to exceed 18 months, and a fine not to exceed $10,000, or both.

It is very difficult for the prosecutor to prove a wilful non-support case. In my almost two decades of practice, I have never seen a criminal case filed against a person for failing to pay child support. The local County Prosecutors are extremely busy prosecuting drug cases and other violent crimes. To be blunt, the prosecutors don’t want to be bothered with child support cases. I have represented a client who had $140,000 in child support arrears. The County Prosecutor never filed any type of criminal charge of willful non-support against him. There are many laws on the books that are still valid, but are rarely used or enforced. The criminal penalties for the failure to pay child support is a perfect example of a law that is still “good law,” but it is rarely if ever enforced.

The main element necessary to prove a wilful non-support case is that the defendant willfully refused to pay child support. Wilful behavior is purposeful behavior. The second element is that the defendant must also know that he is legally obligated to pay child support. In the situation where the wife has deserted a husband and there is no agreement to support or court order to support, there will not be sufficient proof for a prosecution of the husband for the failure to support the wife and children. The State will also have to prove that the defendant was able to pay the child support.

19. What is the status of the caselaw with regard to child support and the ability to pay it?

The New Jersey Supreme Court ruled in a recent case that all non custodial parents charged with violating a court order and facing the possibility of going to jail for nonpayment of child support must be told at the enforcement hearings that they have a right to be represented by a lawyer. In the case of Pasqua v. Council, 186 N.J. 127 (2006), the court held that indigent parents, who are charged with violating child support orders and are subject to coercive incarceration at child support enforcement hearings, have the right to appointed counsel. The Pasqua case successfully challenged New Jersey’s unconstitutional practice of failing to appoint attorneys for indigent child support payors at enforcement hearings where they face incarceration. As a result of this case, the family courts are now required to diligently inquire into whether a delinquent payor is indigent. If the court finds that the payor is indigent, then the court must advise him that he has a constitutional right to have legal counsel represent him at an enforcement hearing.

At the time of this article, there are no public defenders who are available to represent parents who are arrested for failing to pay their child support. Therefore, a strong argument can be made that incarceration is not an available option for a family court to impose at an “ability to pay hearing.”

20. What happens if the court does not inform the non custodial parent about the right to a lawyer or fails to provide a lawyer?

If the court does not inform the non-custodial parent about the right to an attorney at an enforcement hearing, or if the court fails to provide a lawyer for a low income non custodial parent, then the court cannot use the threat of jail to force the payor to comply with the child support order.

There is currently no system in place to provide lawyers for low income parents who are facing jail time for the failure to pay child support. Because the right to a lawyer exists without the ability to provide for a lawyer, the family court will not be able to use jail time as a way to enforce child support orders. This means that when a motion to enforce a child support order is filed against a non custodial parent who is able to provide proof to the court that he is indigent, then the court will not be permitted to grant an arrest warrant against this parent, unless there is a system to appoint an attorney for this person.

22. What impact will the Pasqua case have on “Ability to Pay Hearings”?

The Pasqua case is a landmark case. This decision marks a change in the law with regard to the enforcement of the payment of child support laws. Before the Pasqua case was decided, in my opinion Probation and the courts were overly zealous in their never-ending pursuit to enforce the payment of child support. Driver’s licenses were being suspended for the failure to pay child support. However, neither Probation or the court would provide the payor with any type of notice of this suspension. Therefore, quite often a payor would be stopped for driving while suspended, and he would have absolutely no notice of his suspension. Moreover, arrest warrants would be issued even if the payor would get hurt at work, and if he could not longer make the child support payments. In summary, each and every year the child support enforcement laws have become more onerous, and in many ways more unfair.

The Pasqua case is a strong indication that this trend may be changing, or at least slowing down some. The main point of the Pasqua case is that if a parent who has difficulty keeping up with his child support payments also has some very important constitutional rights as well. No longer are the rights of the custodial parents more important than the constitution. The oppressive cost to live in New Jersey often makes it impossible for a person to keep up with their child support payments. Moreover, in our mobile society life time employment with the same company is a relic of past. Companies now discard employees as if they are outdated furniture. Moreover, people get sick and get hurt. In my opinion, in many cases the courts and Probation fail to take into the real life problems of many non-custodial parents who simply can’t afford to pay their child support payments.

The Pasqua case may start a trend to provide parents who can’t afford to pay child support with some more important legal rights. In my opinion it is very doubtful that the Administrative Office of the Courts will provide public defenders to represent indigent litigants who have not been able to pay all of their child support. Therefore, based on a careful reading of the Pasqua case it would appear that incarcerating a non-custodial parent for not paying his child support may be unconstitutional for a first or second offense. However, I doubt that any Pasqua type arguments would be as strong for serial “dead beat” dads, or for parents who have accrued astronomical arrears. However, it is clear that the legal reasoning of Pasqua gives a strong indication that jail time for a first or second time offender for failure to pay child support may be a “relic of the past.”

Search Articles
Affordable Fees!
Getting a Divorce Shouldn't Be Expensive
Contact Us

Payments Accepted
  • visa
  • mastercard
  • amex
  • discover