Orange County Enforcement of Court Orders Lawyers
Enforcement of Court Orders: The Basics
It has been our experience that the courts in California wield broad discretion in the enforcement of court orders. That said, lawmakers have indeed imposed some limits on this discretion: for instance, if the one is ordered to pay child support is incarcerated or institutionalized for more than 90 consecutive days, in such a case, the child support payments would be suspended. On top of this , the courts are likely to pump breaks on enforcement, while appeals are pending. there are substantial exceptions to this. For example, court orders for payment of money or court cost awards will generally not be stayed on appeal.
It is worth noting what it says in 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.” Nevertheless, despite the power of the local child support services to garner the aid of the Internal Revenue Service or the California Franchise Tax Board to levy property in the recovery of child support payments, some property can be excluded from money judgment enforcement altogether.
Collecting Child Support Payments
For a child support order, unless the parents set up an alternative payment arrangement, the order is customarily enforced by means of a so-called wage assignment. Wage assignment, sometimes referred to as a wage garnishment order, is sent to the payer’s employer.
Usually, one of the local child support agencies operated by the California Department of Child Support Services, will start the wage assignment request with the court automatically, if they are involved in the case.
The recipient of the child support may feel the need to request a wage assignment directly, on his or her own. Two forms are required to do this:
- Form FL -340,
- Findings and Order After Hearing form , and
- Form FL-195, the Income Withholding for Support form.
As soon as the wage assignment goes through, gets signed by the judge, and is duly served on the employer, withholding must begin. The payer’s employer is obligated to start withholding the child support within ten days of service.
Some Forms Of Enforcement in the Event of Non-Payment of Child Support
The California Department of Child Support Services has the power, via its local agency, to report any neglected child support payments to the three credit reporting bureaus. Further, if a paywer owes $2,500 or more in unpaid child support, the US Department of State can deny a passport issuance or renewal until all the arrears (the past due payments) are made.
All tax refunds, unemployment benefits, and even disability insurance or worker’s compensation payments can be intercepted and garnished to recover any unpaid child support. The Franchise Tax Board has the authority to seize assets, including bank accounts, vacant land, and personal property for this purpose as well. The local child support agency might request that any professional licenses or a driver license be suspended.
Moreover, it is critical to state that even though child support orders can be modified if the circumstances of the debtor change, in general, child support payment orders cannot be modified retroactively. A retroactive modification would affect the arrears, which were due prior to any request for modification.
Real Property Exempted From Money Judgments Enforcement
Generally, the Enforcement of Judgments Law, Title 9 of the California Code of Civil Procedure, also dictates how courts can proceed in order to make sure that their orders are carried out. The law exempts some property from enforcement of money judgments. Title 9 also expressly mandates that: “The exemptions provided by this chapter or by any other statute apply to a judgment for child, family, or spousal support.”
The court has discretion in rendering a decision as to whether they will allow an exemption, or whether to satisfy the judgment and tax the exempt property. Whatever decision results needs to balance the needs of the debtor with the needs of the creditor and “all the other relevant circumstances.” In considering the needs of the debtor, the court must take into account all her (or his) property, including the property of his or her spouse and dependents.
Notably, exemptions laid out under this title apply exclusively to natural persons. Exemptions are elective. By electing a group of exemptions under the legislation, the debtor forfeits all other forms of exemptions. What this means to the debtor is that the available options are often mutually exclusive.
For instance, by opting for an exemption under Section 703.140(b) of the Judgment Enforcement Law, the debtor forgoes exemptions that were available to him under any other section of this law.
Some of the group of elections pursuant to Section 703.140(b):
- 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 adjusts the dollar limits on exemptions from enforcement every three years. The adjustment is made based on the consumer price index published by the Division of Labor Statistics in the Department of Industrial Relations. The legislature could also vote in favor of raising the limits on exemptions.
The limits listed herein are effective April 1, 2013:
The exemption needs to be claimed within 10 days of the notice of levy. The creditor may oppose such a claim. Nonetheless, at the end of the day, the court decides whether to grant an exemption from enforcement of a judgment or order.