Can I go to Jail for not Paying Child Support?
In short, yes you can to jail for failure to pay child support in Virginia. There are many remedies in Virginia, as well as other states, that a person receiving child support has when a parent fails to pay child support. These remedies include loss of business license, loss of driver’s license, garnishment of wages, garnishing of income tax returns, and incarceration.
This blog post covers some of the relevant information and authority related to child support enforcement in Virginia. This blog entry is not intended to be an exhaustive discussion on the topic, not even close. Furthermore, this blog entry is intended for informational purposed only. A person with matters relevant to those discussed below should use this blog during the information gathering process and perhaps as research to help them interact with and select an attorney. A person with any of the issues described below should NOT use this blog entry as a substitute for obtaining legal advice.
Child Support Orders
Every Virginia child support order is required by law to have certain notices. The required notices are stated in full detail in Va. Code Ann. § 20-60.3. There are 17 different paragraphs that cover the required notices and what content must be included in child support orders, and I am not going to restate each of them here. A few examples, however, are (1) that support will continue for children over the age of 18 under certain circumstances, (2) that a petition can be filed to suspend a license to engage in professions, such as a teaching license or barber’s license, and/or a driver’s license after there has been a delinquency for more than 90 days OR there is delinquency of more than $5,000., and (3) unpaid support becomes a judgment by operation of law with the interest accruing at the judgment rate, or 6%. Va. Code Ann. § 20-60.3 does not, however, require notice to be given that failure to pay child support can result in incarceration.
Enforcement through the Contempt Power of the Court
The Court has the power to send you to jail if you do not pay child support. Va. Code Ann. § 20-115 could not state this power any more clearly. If you fail or refuse to comply with an order relating to the support and maintenance of a child or children, the Court can commit and sentence you to a local correction facility. The sentence can be for a fixed or indeterminist amount of time, so long as the sentence does not exceed 12 months. What is more is that while you are in jail, the Court can assign you to a local work-release program to perform public service work. The money you earn from work-release will be applied to your child support. The work-release statute can be found here.
Va. Code Ann. § 16.1-292 gives the Juvenile and Domestic Relations District Court (“J&DR Court”) similar power to commit and sentence you for a period of up to 12 months if you fail to pay child support. Just like the Circuit Court, the J&DR Court can assign you to the work-release program. You have an automatic right of appeal from the J&DR Court to have your case heard all over again in the Circuit Court. If you are being committed to jail for failure to pay child support, however, you likely owe a significant arrearage. Unlike most cases in the J&DR Court, to perfect an appeal of a support arrearage, Va. Code Ann. § 16.1 -296 states that you must post a bond in the amount of your arrearage. Consequently, many people found by the J&DR court to have a significant arrearage, are unable to appeal the order because they are unable to perfect the appeal. What is more is that the J&DR court can also require additional bond to cover support that will accrue during the pendency of the appeal.
Child support arrearage cases are serious cases with serious consequences. They should not be taken lightly, regardless of the venue of the case.
Importance of Receiving a Child Support Modification
If your circumstances, the circumstances of your children, or the circumstances of the other parent have changed in a material way since the last child support order, then it is important that you petition the appropriate court to modify child support. A handshake deal between you and the other parent IS NOT ENOUGH to modify your support obligation. You need to have the agreement put into a new court order. The Court has the power to retroactively modify support under Va. Code § 20-108 BUT ONLY for the period during which a petition to modify is pending. This means that if you file on March 1, 2014 and the Court enters an order one June 1, 2014, then the Court may make the order retroactive to March 1, 2014. The Court may not, under the same statute, make the order retroactive to February 28, 2014, or any date before you file. So, if you had an agreement to modify support on March 1, 2012, but did not petition the court until March 1, 2014, you are on the hook for two years of arrears.
Is there a Statute of Limitations for Child Support in Virginia?
There is not a simple answer to that question. In a sense there is a statute of limitations on child support enforcement, but it is easier to extend than most statutes of limitations. The Virginia Supreme Court recently considered the issue in Adcock v. Commonwealth, 282 Va. 383 (2011). The Court restated the established law under Va. Code Ann. § 8.01-426 that support payments become a judgment as a matter of law when they become due and are unpaid. Consequently, the Court held that each installment of child support that goes unpaid becomes a judgment on the date it is due in the amount of the installment due. Va. Code Ann. § 8.01-251(A) limits the enforcement of judgments of the Circuit Court to 20 years. Consequently, there is a 20 year limitation on enforcing a support payment that has become a judgment.
Let’s use a hypothetical to flesh out where the waters can get a little muddy. Let’s assume that Dad is ordered to pay Mom support for their only child on January 1, 1992 until the child reaches 18 on June 30, 1996. The child support order is part of the Circuit Court’s decree divorcing Mom and Dad. Support payments are in the amount of $200 per month and are due in one installment on the 15th day of each month. Dad never pays support, neither party never seeks a modification, and Mom never brings an action enforcing the support order, until now. If Mom files her action on June 1, 2014, then she can only seek the payments from June 15, 1994 through June 15, 1996. The payments that were due on January 1, 1992 through May 15, 1994 are lost to her because the statute of limitations has run on enforcing the judgments.
The statute of limitations on judgments is more forgiving than other statutes of limitations, however, because it can more easily be extended. Va. Code Ann. § 8.01-251(B) allows the 20 year limitation to be extended upon motion of the judgment creditor. When the judgment creditor makes the motion, the debtor has the burden of showing good cause for why the judgment should NOT be extended. This means that if Mom filed a motion to extend the judgment before January 15, 2012, Dad would have to show good cause why the judgment should not be extended, or else the judgment would be extended and Mom could then later collect for all of the back support.
Foreign Judgments & Continuing Enforcement
The Uniform Interstate Family Support Act set out in Va. Code Ann. §§ 20-88.32 through 20-88.82 states the Virginia rules for interstate enforcement of child support orders. Va. Code Ann. §20-88.40 allows a Virginia Court to request enforcement of its order in another state if (1) its support order is still the controlling order (i.e. it has not been modified by another state) or (2) an arrearage exists that predates the modification even if the support order has been modified. Additionally, Va. Code Ann. 20-88.66 allows Virginia to enforce another state’s support order. You cannot escape enforcement of a child support order by moving from another state to the Commonwealth of Virginia or by leaving the Commonwealth of Virginia for another state.
You can go to jail for failing to pay child support. Failure to pay child support may also have other serious consequences, including consequences that will hinder your ability to earn money, such as loss of a business license or driving license. Child support obligations need to be taken seriously. If support needs to be modified, you need to get an order modifying support. The statute of limitations on child support arrearages is generally at least 20 years. Even if you and the other parent are getting along now, and you feel it is safe to trust they will honor your verbal agreement, how confident do you feel that they will continue to do for the next 20+ years down the road?
You can also see our related blog post, Can I Go to Jail for Not Paying Spousal Support?