State law on how unpaid child support is handled varies greatly amongst the states. However, the right to unpaid child support, or child support arrears, is generally viewed as belonging to the parent receiving child support, not the child. This means that the parent owed child support must typically be the party to sue the “responsible parent,” the parent ordered to pay child support, for any unpaid child support amounts, although the county Division of Social Services (DSS) can also sue if child or children had to go on public assistance during the periods of unpaid support.
It is important for you or your attorney to report unpaid child support payments to your county’s DSS as soon as they become overdue. This creates the record that DSS and the court will use to enforce the child support obligation as it accrues.
Child support is usually due through the first 18 years of the minor’s life, although this can differ in certain circumstances. If the child is legally emancipated before he or she turns 18, the responsible parent’s child support obligation will stop at that time. However, if the child is still in primary or secondary school when he or she turns 18, then the obligation continues until the child either 1) graduates; 2) stops attending school on a regular basis; 3) stops making satisfactory academic progress towards graduating; or 4) reaches the age of 20, whichever happens first. In the case of graduation or reaching the age of 20, the payments terminate without order of the court and it is the obligation of the parent receiving child support to show that the child has not yet graduated or reached 20 years old. However, the court can, in its discretion, order that child support payments cease at age eighteen or prior to high school graduation.
Breaking Down the Statute of LimitationsIn North Carolina, there are two different statutes of limitations which apply to child support arrears. The circumstances of the obligation dictate which statute of limitation applies.
There is a three-year statute of limitations that applies to collection efforts for overdue child support payments. Each month a child support payment is due, the three-year clock for the statute of limitations begins to run on that single payment.
There is a ten year statute of limitations that applies to collection efforts on a judgment or order which finds a child support responsible parent in arrears, typically due to numerous previously missed child support payments. This judgment reduces these numerous missed payments to a single amount owed, and usually provides for a method for the responsible parent to pay off the arrearage, such as making additional monthly payments until the arrearage is paid off.
Enforcing the Monthly Support ObligationSo what does this mean? If your child’s other parent chronically neglects their child support obligations, does that mean you, the custodial parent, have to go to court for every single monthly payment they missed over the years?
Fortunately, no.
Either a court order stemming from divorce or a separate court order facilitated by DSS will provide the monthly amount the noncustodial parent is legally bound to pay in child support. This amount is usually set according to the state’s Child Support Guidelines, which are calculated according to the incomes of the parents, time spent with each parent, and the financial expenditures related to the child or children such as childcare and health insurance. Once the arrearages begin to accrue, you and your lawyer can move to hold the responsible parent in either civil or criminal contempt for failure to pay child support. Additionally, if you are eligible for DSS to be involved in your case because your child is receiving public assistance, DSS has a number of measures available with which to enforce the support order. DSS can file a court action in order to enforce an unpaid child support obligation, and, upon securing judgment withhold the responsible parent’s income or unemployment benefits, intercept their tax refunds.
Given that there is a three year statute of limitations on each child support payment due, it is important not to let a responsible parent get away with failing to make child support obligations for an extended period of time. Stay on top of enforcing your right to child support, either with private counsel, through DSS if you are eligible, or even pro se (or without an attorney) if necessary. Also, it is important for parents receiving child support to keep an accurate record of each payment received including both the date and amount. When a responsible parent is not paying their entire monthly child support obligation, but instead is only making partial payments, it is important to be able to demonstrate this to the court as well.
Enforcing a Court Order for Child Support Arrears in Another StateAll of the above assume that both the parent receiving support and the responsible parent live in North Carolina. If this is the case, the 10-year statute of limitation discussed applies. However, what if the one of these parties lives in another state?
Enter the Uniform Interstate Family Support Act (UIFSA). This legislation was developed in the 1990s and has now been adopted by all 50 states. It addresses the establishment, enforcement and modification of child support orders when more than one state is involved.
Specifically, the UIFSA states that when two states are involved in the enforcement of a child support order, the statute of limitation that is the longer of the two will apply. So, for example, if the responsible parent lives in a state such as Colorado where the statute of limitation for enforcing a court order for payment of unpaid child support is 20 years, and the custodial parent and child live in North Carolina, a court would apply Colorado’s statute of limitations because it is the longer of the two. If you are seeking to enforce a North Carolina court order for child support arrears for a person that lives in another state, it is even more important that you consult with a family law attorney to determine which state law will apply.
If you are facing a family law matter such as collecting support that is owed to you and your child, it is important to consult with an attorney as soon as possible. Please contact Arnold & Smith, PLLC today for a consultation with one of our experienced family law attorneys.