You Don’t Pay Child Support, You Go to Jail – Right? Sometimes no.

Child Support Enforcement In New Jersey

In New Jersey, the Court has some very powerful tools to force a dead-beat parent to pay child support. The strongest remedy to force payment is that the Court can issue a bench warrant, an arrest warrant, and the County Sheriff’s officers will find and arrest the dead-beat. There are many other steps the Judge can take: finding that the Defendant has ignored the Court’s order and is in contempt of court but without ordering a bench warrant; ordering wage garnishment; order payment of the original amount plus additional to pay the arrears; order that interest be added to the unpaid amount; order that the other person’s attorneys fees be paid by the dead-beat. Grab tax refunds. Maybe allow seizure of bank accounts or other assets. And more.

The Trial Court could have ordered a hearing to be held, and ordered Defendant to come to Court to explain why he had not paid.

But this is not automatic. How quickly the Court takes action, and how strongly the Court will take action, depends upon what Court you are in, and what Judge you have. There are no strict rules about any of this.

Sometimes, a Court will just not take action to force payment. Some Counties allow arrest of dead-beats; others, the Court system and the County Sheriff and County Jail are just overwhelmed already, and they will not arrest. That is a matter of what is available in that County which the Judge can use.

It is very hard to get that kind of decision overturned on appeal to a higher court. The Appellate Judge will give a lot of deference to the Trial Judge who heard the case and decided what enforcement action to take.

However, sometimes, the Judge just will not enforce. No good reason. And the Appellate Division has to step in.

In the most recent case like this, the Appellate Division finally got fed up with the trial court failing to take any action after FIVE motions asking the Court to force the dead beat dad to pay up. Over $75,000.00 in unpaid child support and alimony, plus thousand of dollars paid to lawyers to try to make the dead-beat pay. Five trips to Court, four prior court orders that the defendant pay support, and provide insurance and tell the Probation Department where he was living, all of which Defendant ignored. And the trial court decided to do nothing. Tut tut, please listen to the Court this time…really?

In Maloney v. Epstein, Superior Court of New Jersey Appellate Division Docket No. A-1209-22, the parties were divorced in 2021, they have 3 children, and the Final Judgment of Divorce required the Defendant Father to pay Plaintiff Mother $234.00 per week in child support and $750.00 per month in alimony. The Husband was also required to pay through the Probation Department, and give the Probation Department his employment information so that they could garnish his wages.

The Defendant did not do any of these things. He owed over $100,000.00 in total. He also failed to obtain medical insurance and life insurance to protect his children. He had done absolutely nothing.

The trial Court found that the Defendant had violated the Judgment of Divorce and ordered him to comply, five separate Orders to Comply. The Defendant did nothing. The trial Court entered an Order on November 18, 2022, the fifth Order, finding that the Defendant owed over $75,000.00 for alimony and child support, thousands of dollars for his ex-wife’s attorney’s fees that he was ordered to pay because his bad actions caused her to spend this enormous amount of money on lawyers, and ordered the Defendant to do the other things he was required to do under the Judgment of Divorce. But no arrest warrant. No seizure of anything. Nada.

The ex-wife also asked the Court again and again to issue a bench warrant to arrest the ex-husband for his complete disregard of the Court Orders, failure to do anything that he was ordered to do. The ex-wife asked that he be incarcerated, that his time with his children be suspended until he complied, that he be forced to comply. Despite being ordered to do it four separate times before. The trial judge decided to do….nothing.

The Appellate Division was fed up. The Appellate Division said that there are ways that the trial Court could have forced the Defendant to what he is required to do. The trial Court explicitly refused to do anything to force him to pay. The Appellate Division decided that this was an abuse of the trial Court’s discretion. The Appellate Division pointed out that this man had completely ignored all of the Court Orders. He now owes over $100,000 .00 in arrears and support and other financial obligations, he does not have the required life insurance and health insurance and he has not even told the Probation Department where he is working so they can garnish his wages and get some of these things paid. The Appellate Division reversed the trial Court. The Appellate Division ordered that the Trial Court hold a hearing, and have Defendant explain why he had not paid. And if Defendant does not appear at that hearing, a bench warrant for his arrest will be issued.

This case is almost incredible. Can you possibly imagine how the ex-wife feels, when she keeps getting Court Orders that her ex-husband failed to pay the money that he must pay for her support and the support of their children, but nothing will be done to force him to comply? That he will not be forced to provide his employment information so his wages can be garnished? That there still is no health insurance or life insurance for the children or herself, despite multiple Court Orders that say that he must provide this? Can you imagine the frustration of her attorney when the trial Court refuses again, with no real explanation, to do anything to help her?

The Appellate Division made it very clear: If a Bench Warrant is issued for failure to pay support the law is that the person who is arrested must be brought before a Court as soon as possible, but in any event within 72 hours of their arrest. If the person cannot afford a lawyer, the Court must appoint a lawyer for free, or the person cannot be jailed for nonpayment. See Pasqua v. Council, 186. N.J. 127 (2006). The Court then has a hearing on “ability to pay”. This hearing is to decide whether the person has the ability to pay and simply did not, or their failure to make payment had some reasonable basis.

If you don’t pay child support without extraordinary good reason for non-payment, you should go to jail. Unless you have truly extraordinary, really good reasons why you are absolutely unable to pay the money needed for your children to have food, pay the rent for the apartment they live in, and the other things they need to live.

The other real point is this: when a trial Judge makes a decision it takes a great deal of time and effort for an attorney to Appeal that decision, for the Appellate Division to overturn it and correct the mistake. Many, many people who receive an incorrect decision from a trial Court will simply never have the ability to bring it to the Appellate Division to be remedied.

This makes it very important to help the Judge to get it right the first time. A clear forceful presentation of your case will go a long, long way to help you get the results you seek.