Divorce Order Enforcement
Enforcement of Court Orders: The Basics
In general, the courts in California have a broad discretion in the enforcement of court orders. Nonetheless, the lawmakers did impose a few limits on this discretion: for example, if the person ordered to make child support payments is incarcerated or institutionalized for more than 90 consecutive days, then the child support payments are suspended. Also, the courts are likely to hold off on enforcement, while an appeal is pending, but there are substantial exceptions: orders for payment of money or court cost awards will generally not be stayed on appeal.
It is critical to note that pursuant to 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.” That said, despite the power of the local child support services to marshal the assistance of the Internal Revenue Service or the California Franchise Tax Board to levy property in the event of child support nonpayment, there is some property that could be excluded from money judgment enforcement altogether.
Collecting Child Support Payments
If a child support order was issued, unless the parents arrange to an alternative payment situation, the order is normally enforced by means of a so-called wage assignment. Wage assignment, sometimes referred to as a wage garnishment order, is sent to the employer.
Customarily, a local child support agency, operated by the California Department of Child Support Services, will commence the wage assignment request with the court automatically, if they are involved in the case. Apart from that, the court clerk may be of assistance.
There are times when the recipient of the child support may need to request a wage assignment directly, on his or her own accord. In such a situation, two forms are required: Form FL -340, the Findings and Order After Hearing form and Form FL-195, the Income Withholding for Support form. As soon as the wage assignment is processed, signed by the judge, and duly served on the employer, the employer is required to 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 has the authority to, via its local agency, report any neglected child support payment to the credit reporting bureaus. Moreover, if anyone owes upwards of $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.
Any tax refunds, unemployment benefits, and even disability insurance or worker’s comp payments can be intercepted and garnished to make up for any unpaid child support: the Franchise Tax Board can seize assets, including bank accounts, vacant land, and personal property. The local child support agency would even be able to request that any professional licenses or a driver license be suspended.
Furthermore, it is critical to note, that even though child support payments can be modified if the circumstances of the debtor change, in general, child support payment orders cannot be modified retroactively so as to affect the arrears, which became due prior to any request for modification.
Property Exempt From Money Judgments Enforcement
Generally speaking, the Enforcement of Judgments Law, Title 9 of the California Code of Civil Procedure, also regulates how courts can proceed in order to make certain that their orders are carried out. The law exempts certain property from enforcement of money judgments. Title 9 also expressly dictates that: “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 handing down the decision as to whether to apply the exemption, or whether to satisfy the judgment by taxing the exempt property. The decision needs to balance the needs of the debtor with the needs of the creditor and “all the other relevant circumstances.” When examining the needs of the debtor, the court has to take into account all her (or his) property, including the property of his or her spouse and dependents.
Notably, the exemptions laid out under this title apply exclusively to natural persons. The exemptions are elective, and by electing a group of exemptions under the legislation, the debtor forgoes all other forms of exemptions. What this means is that the available options are often mutually exclusive. So, for instance, by opting for any exemptions under Section 703.140(b) of the Judgment Enforcement Law, the debtor forfeits exemptions that were available to him under any other section of this law.
The group of elections pursuant to Section 703.140(b), includes, for example:
- Interest in real estate or personal property utilized as a residence by the debtor or his dependent, not to exceed twenty-five thousand five hundred seventy-five dollars ($25,575)
- Interest in any 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 a musical instrument, limited to a maximum of six hundred fifty dollars ($650)
- Interest in any 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 collect social security benefits, public assistance or unemployment compensation, disability, veteran’s benefits, alimony, pension or annuity – take note of the fact that some of these may be limited “to the extent reasonably necessary for the support of the debtor.”
The Judicial Council of California will adjust the dollar limits on exemptions from enforcement every three years. The adjustment is made on the basis of the consumer price index published by the Division of Labor Statistics at the Department of Industrial Relations. The legislature might also vote in favor of increasing these limits on exemptions.
The limits listed here are effective as of April 1, 2013: the full list of all the 2013 dollar amounts of exemptions from enforcement according to Sections 703.140(b) can be found on the California Courts website. It also details limits on exemptions covered by other Sections of the California Civil Code. A more inclusive list of potential exemptions is also provided on the California Courts website: the form number is EJ-155.
The exemption has to be claimed within 10 days of the notice of levy. The creditor can oppose such a claim: at the end of the day, the court decides whether to grant an exemption from enforcement of a judgment or order.