Divorce Order Enforcement
Enforcement of Court Orders: The Basics
California courts have generally a broad discretion in enforcement of court orders. However, the lawmakers did impose some limits on this discretion: for instance, if the person ordered to pay child support is incarcerated or institutionalized for more than 90 consecutive days, the child support payments are suspended. Also, the courts are likely to hold off on enforcement, while an appeal is pending, but there are significant exceptions: orders for payment of money or court cost awards will generally not be stayed on appeal.
It is important to note that under Section 291 of California Family Code: “A money judgment or judgment for possession or sale of property … including a judgment for child, family, or spousal support, is enforceable until paid in full or otherwise satisfied.” But, despite the power of the local child support services to command the assistance of the Internal Revenue Service or the California Franchise Tax Board to levy property in the event of child support nonpayment, some property may be exempt from money judgment enforcement altogether.
Collecting Child Support
If a child support order is issued, unless the parents agree to an alternative payment arrangement, the order is usually enforced by means of a so-called wage assignment. Wage assignment or wage garnishment order is sent to the employer.
Typically, a local child support agency, run by the California Department of Child Support Services, will initiate the wage assignment request with the court automatically, if they are involved in the case. Otherwise, the court clerk may be of assistance.
At times, the recipient of the child support might need to request a wage assignment directly, on his or her own accord. In such case, two forms are necessary: Form FL -340 (Findings and Order After Hearing) and Form FL-195 (Income Withholding for Support). Once the wage assignment is processed, signed by the judge, and properly served on the employer, the employer must start withholding the child support within ten days of service.
Consequences Of Non-payment: Some Forms Of Enforcement
The California Department of Child Support Services can, via its local agency, report any missed child support payment to the credit reporting bureaus. Further, if anyone should owe $2,500 or more in child support payments, US Department of State can deny a passport issuance or renewal, until all the arrears (the past due payments) are paid.
Tax refunds, unemployment benefits, and even disability insurance or worker’s compensation payments can be intercepted and garnished to satisfy any unpaid child support: the Franchise Tax Board can seize bank accounts, vacant land, and personal property. The local child support agency can even request that any professional licenses or a driver license be suspended.
Moreover, it is critical to note, that although child support payments can be modified if the circumstances of the debtor change, but in general, child support payment orders may not be modified retroactively so as to affect the arrears, which became due prior to request for modification.
Property Exempt From Money Judgments Enforcement
In general, the Enforcement of Judgments Law, Title 9 of the California Code of Civil Procedure, also called regulates how courts may proceed in order to make sure their orders are carried out. The law exempts some property from enforcement of money judgments. Title 9 also expressly states: “The exemptions provided by this chapter or by any other statute apply to a judgment for child, family, or spousal support.”
Significantly, the court has discretion in making the decision, as to whether to apply the exemption, or whether to satisfy the judgment by dipping into the exempt property. The decision must balance the needs of the debtor with the needs of the creditor and “all the other relevant circumstances.” When determining the needs of the debtor, the court must take into account all her (or his) property, including the property of her spouse and dependents.
Notably, the exemptions listed under this title apply exclusively to natural persons. The exemptions are elective, and by electing one group of exemptions under the statute, the debtor forgoes other types of exemptions, meaning the available options are often mutually exclusive. So, for instance, by choosing any exemptions under Section 703.140(b) of the Judgment Enforcement Law, the debtor gives up exemptions available to him under any other section of this law.
The group of elections under Section 703.140(b), includes for example the following:
- Interest in real estate or personal property used as residence by the debtor or his dependent, not to exceed twenty-five thousand five hundred seventy-five dollars ($25,575)
- Interest in motor vehicles, not to exceed five thousand one hundred dollars ($5,100)
- Interest in one item of movable property, such as household furnishings, apparel, or musical instrument, limited to a maximum of six hundred fifty dollars ($650)
- Interest in tools of trade, including professional books, not to exceed seven thousand six hundred twenty-five dollars ($7,625)
- Professionally prescribed health aids for the debtor or his dependent
- Right to receive social security benefits, public assistance or unemployment compensation, veteran’s benefits, disability, alimony, pension or annuity – note that some of these may be limited “to the extent reasonably necessary for the support of the debtor.”
The Judicial Council of California adjusts the dollar limits on exemptions from enforcement every three years. The adjustment is based on the consumer price index published by the Division of Labor Statistics at the Department of Industrial Relations. The legislature can also vote to increase these limits on exemptions.
The limits listed here are effective from April 1, 2013: the full list of the 2013 dollar amounts of exemptions from enforcement under Sections 703.140(b) can be found on the California Courts website. It also contains limits on exemptions under other Sections of the California Civil Code. A more extensive list of possible exemptions is also provided on the California Courts website: the form number is EJ-155.
Exemption must be claimed within 10 days of the notice of levy. The creditor can oppose such claim: ultimately, the court decides whether to grant an exemption from enforcement of a judgment or order.