A recent blog post explored who was the “victim” in cases of unpaid child support, but the means of collection of unpaid child support is another issue that often needs to be addressed in cases of divorce or paternity.
Child support amounts are generally ordered by the Court, and take into account the income and expenses of the parties1. Once child support is ordered, the payor (party/parent paying child support to the other parent) may have an income withholding order put in place against their income to automatically deduct payments for child support from his or her paycheck2. In other instances, child support payments can be made to the Clerk of the Court or through the Indiana State Central Collections Unit (INSCCU)3.
But what if child support is not paid through one of the methods above? A recent Indiana Court of Appeals case explored this issue4. In this case, Father was ordered to pay child support in the amount of $161.54 per week. Father paid for a short period, but lost his job and stopped making payments. Years later, the parties agreed that there was a $135,856.74 child support arrearage that Father had not paid, which was reduced to judgment, and Father agreed to make weekly payments of $280 to pay on the arrears.
Mother determined that Father had a retirement account containing approximately $36,000 and filed a Qualified Domestic Relations Order (QDRO) which was granted5 and Father’s retirement account was depleted and Father’s tax consequences were assessed at 20% for early withdrawal. This QDRO was found to not have been appropriate and Mother was ordered to pay attorney fees to Father based on an alleged violation of the Fair Debt Collection Practices Act (FDCPA)6.
After examining the language and intent of the FDCPA and caselaw regarding child support arrearage, the Court of Appeals found that even a child support arrearage that has been reduced to a judgment is not “debt” under the FDCPA. Therefore, the Order for Mother to pay attorney fees based on an alleged violation of FDCPA was not appropriate. The Court further held that while Courts may order a QDRO to satisfy a child support arrearage, it is not required.
Child support arrearage is not a “debt” like other debts and the Court will not require a QDRO to use retirement accounts to pay outstanding arrears. The complexities of child support and arrearages are multiple, and it is helpful to seek the assistance of an attorney to help walk through the numerous issues associated with same.
We hope that this blog post has been helpful in understanding some basics of child support arrearage. Dixon & Moseley, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Jessica Keyes.