Going to Court for Child Support
Five Things to Learn from Evander Holyfield’s Recent Court Battle over Child Support
Former heavyweight champion Evander Holyfield escaped a jail sentence for failing to obey a court’s child support orders by negotiating with a former girlfriend to pay for his son’s college tuition.
“She didn’t want him incarcerated. The last thing she wanted was to be the one to ask that he go to jail,” attorney Randy Kessler said of his client, Toi Irvin, the boy’s mother. The case will remain open until Holyfield has met the conditions of the agreement.
Holyfield is just one of many Americans that pay child support each month. One in four divorced Americans is supposed to receive child support or alimony.
Almost one-quarter of custodial parents with child support orders receive no payments at all, according to the U.S. Census Bureau, Custodial Mothers and Fathers and Their Child Support: 2005, released in August 2007. The average amount of child support a custodial parent receives is $5,600 a year or $465 per month.
Holyfield, who pays $3,000 in support for his 10-year-old son, will pay $100,000 in a college fund over the next three years. He also agreed to pay for private school, his son’s health insurance and paid almost $5,000 in attorney’s fees to the boy’s mother, according to an October 2008 story by the Associated Press.
The incident was the latest in the case between Irwin and the four-time heavyweight champion, 46, who has faced financial problems in recent months, including foreclosure of his home.
Government and private child support collection agencies both cite the most common reasons they cannot collect back child support payments were they couldn’t find the parent, the parent had no money or the parent was in jail, according to the U.S. General Accounting Office, Child Support Enforcement, 2002.
California attorney David Pisarra said he worked a similar case last week in which one party was trying to get a contempt order that could put his client in jail for non-payment of child support. “It is a lot like killing the goose that lays the golden egg. By putting a person in jail you inhibit his/her ability to earn a living, thus causing more harm to an already difficult and painful situation, because of their hours have been cut back, now they might lose their job entirely.”
He explains, “Most of the men we represent who are behind on their child support payments are just good guys who are financially strapped. The number one reason men who have been paying child support, fall behind, is job loss. As we move into a tighter economy we’re going to see more people fall behind, and the best thing parents can do for their kids what happened here, by working together they were able to fashion a solution.”
But Los Angeles attorney Kelly Chang Rickert disagrees, saying anyone who is owed child support should take a lesson from Irwin’s actions. “I have many clients who feel guilty taking their ex to court for child support. This is what I tell them: You should not feel guilty. The support isn’t for YOU, it’s for your child. Even if you feel like waving support, it’s not yours to waive. It’s your child’s. The law does not allow you to waive child support. So, getting a child support order is you protecting your children. You have a duty as a parent to do this.”
Chang Rickert tells clients to go to court and get a child support order immediately. “Unless you have an order, there is no documentation of arrears. So many clients come in and say, ‘My ex and I agreed that he would pay a certain amount.’ I ask ‘Is this filed with the court?’ They say ‘No.’ Well, unless you have an order, you will not have a documentation of how much was owed, starting from when. Once there is an order that says, for example, $500 a month paid on the 1st, starting October 1, 2008, there is a possibility of arrears.”
The bottom line, Chang Rickert explains, is simple. “You have to pay child support. Child support orders are non-dischargeable, even by bankruptcy. It’s not like a credit card or a car loan. You must pay it. So, it’s too bad your house is getting foreclosed, and you have lots of other debt. Child support comes first. Once you have children, you have an obligation by law to support them. It’s tough luck that you have other debts. Take care of your child support first. Period.”
FIVE TIPS TO HELP COLLECT CHILD SUPPORT
1. Find out why support isn’t being paid.
“Understanding what really is behind the failure to pay will make the whole process less painful. Jail is a threat with little value to someone who has lost everything,” Pisarra says. He suggests parents work together, if they can, “and realize that the other side is not the enemy, but probably is afraid of losing their sense of security also.” A little compassion goes a long way when financial stressors are at play.
2. Don’t delay the problem.
“If you’re the one paying child support and you can no longer pay what the court has ordered, file a modification motion to protect your right to retroactive reductions,” Pisara says. “Men need to remember that it’s not a moral failing to ask for a reduction of child support — it’s a fact of life,” he adds. “Women need to remember that a father’s love for his children is demonstrated in more ways than a check.”
3. Mediate your child support.
If parents can’t work out the financials by talking to each other, consider bringing in a mediator. “Mediated arrangements have better compliance than litigated court orders because the parents themselves participate in creating the child support amount, timing, and other details,” says attorney Philip Mulford of Mulford Mediation in Warrenton, Virginia. “The mediated child support arrangement should be put into writing and filed with the court so the court will be in a position to enforce it, but because it’s been through the mediation process, it’s less likely to become a courtroom battle.
4. Move quickly to get to a courtroom.
If you’re the person who isn’t getting paid, “Making a deal is much easier when you negotiate from a position of strength,” says attorney Lee S. Rosen, the chief executive officer of the Rosen Law Firm in Raleigh, North Carolina. “A realistic threat of putting the other parent in jail puts you in a very strong negotiating position. When parents do the wait-and-see thing, they put themselves in a weak position and they start to run out of money. Once that happens they are willing to take any deal that comes along. Be aggressive, quickly, then you can afford to be reasonable and get the case resolved amicably.”
5. When all else fails, get additional help.
If your spouse doesn’t have a job and won’t pay child support, get some help. “A tip that I found effective is that you can use the machinery of the state to enforce child support orders at little to no cost. For example, in Florida, the Florida Department of Revenue, division of Child Support Services can be very helpful in enforcing child support obligations from delinquent parents,” says Florida attorney Douglas S. Schapiro of Koch & Trushin, P.A. “Moreover, the Federal Office of Child Support Enforcement can be equally helpful. For instance, you can ask these government agencies to intercept any IRS refunds sent to a delinquent parent and instead, have the money delivered to the supporting parent for unpaid child support.”
Rosen agrees: “Every county in every state in the U.S. has a child support enforcement agency (mandated by federal law) that will help for free or for a very small fee. They are generally more effective at enforcement of child support orders as it is all they do and they obtain a high level of expertise.”