How to obtain a 6 percent a month penalty for overdue child support arrearages in California
The topic of this blog post is obtaining a 6 percent a month penalty in certain cases on delinquent child support in the State of California. This is done by utilizing the Civil Penalty for Child Support Delinquency contained in Part 5, Chapter 5 of the California Family Code, specifically sections 4720 through 4733. The California Family Code provides many different methods by which to enforce a child support order. Many family law attorneys and other professionals are either not aware of this method, or do not utilize it because they assume it must be complicated. This is not true. It is a vital tool for use in child support enforcement in California.
All child support orders in California accrue simple interest at a rate of ten (10%) percent per year. However using the Civil Penalty Method it is possible to have a penalty of six (6) percent per month assessed on all child support arrearages which are more than thirty (30) days delinquent. However this method is only intended to be used in extreme situations where there is a clearly deliberate failure to pay the child support order. The California Legislature intends that the penalties provided in this method be used in egregious instances of noncompliance with child support orders. See Family Code § 4721(b).
The person to whom the child support has been ordered paid (support obligee) may file and then serve a Notice of Delinquency with the Court. The Notice of Delinquency is Judicial Council Form FL-485. Click here to view the form. http://www.courts.ca.gov/documents/fl485.pdf
The Notice must be signed under penalty of perjury and must contain the following information: (1) The amount that the child support obligor is in arrears. (2) The installments of support due, the amounts, if any, that have been paid, and the balance due. (3) That any unpaid installment of child support will incur a penalty of 6 percent of the unpaid support per month until paid, to a maximum of 72 percent of the original amount of the unpaid support, unless the support arrearage is paid within 30 days of the date of service of the notice of delinquency. (4) In the absence of a protective order prohibiting the support obligor from knowing the whereabouts of the child or children for whom support is payable, or otherwise excusing the requirements of this subdivision, the notice of delinquency shall also include a current address and telephone number of all of the children for whom support is due and, if different from that of the support obligee, the address at which court papers may be served upon the support obligee. The Notice may be served personally or in any other manner provided for service of a summons. If the child support owed, or any arrearages, interest, or penalty, remains unpaid more than 30 days after serving the notice of delinquency, the support obligee may file a motion with the Court to obtain a judgment for the amount owed, which shall be enforceable in any manner provided by law for the enforcement of judgments.
Pursuant to Family Code Section 4726: “No penalties may be imposed pursuant to this chapter if, in the discretion of the court, all of the following conditions are met: (a) Within a timely fashion after service of the notice of delinquency, the support obligor files and serves a motion to determine arrearages and to show cause why the penalties provided in this chapter should not be imposed. (b) At the hearing on the motion filed by the support obligor, the court finds that the support obligor has proved any of the following: (1) The child support payments were not 30 days in arrears as of the date of service of the notice of delinquency and are not in arrears as of the date of the hearing. (2) The support obligor suffered serious illness, disability, or unemployment which substantially impaired the ability of the support obligor to comply fully with the support order and the support obligor has made every possible effort to comply with the support order. (3) The support obligor is a public employee and for reasons relating to fiscal difficulties of the employing entity the obligor has not received a paycheck for 30 or more days. (4) It would not be in the interests of justice to impose a penalty.” Any penalties due using this method shall not be greater than 6 percent per month of the original amount of support arrearages or support installment, nor may the penalties on any arrearage amount or support installment exceed 72 percent of the original amount due, regardless of whether or not the installments have been listed on more than one notice of delinquency. See Family Code § 4727.
Penalties due pursuant to this method may be enforced by the issuance of a writ of execution in the same manner as a writ of execution may be issued for unpaid installments of child support, as described in Chapter 7 (commencing with Section 5100), except that payment of penalties under this chapter may not take priority over payment of arrearages or current support. See Family Code § 4728.
At any hearing to set or modify the amount payable for the support of a child, the court shall not consider any penalties imposed under this chapter in determining the amount of current support to be paid. See Family Code § 4730. A subsequent notice of delinquency may be served and filed at any time. The subsequent notice shall indicate those child support arrearages and ongoing installments that have been listed on a previous notice. See Family Code § 4731.
As the penalties using this method are quite severe it should only be used in extreme cases. However, in the right situation this method can be very useful in convincing an individual who owes a significant sum of money in delinquent child support to “get their act together” and either pay the full amount due, including the penalties, or make suitable payment arrangements.
The author of this article, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995.
