In Part I of this series, we focused on the positives and negatives about having child support paid directly from the obligor to the obligee. If you don’t know what these terms mean, or have forgotten, check out last week’s post for these definitions. This week, we turn our attention to child support payments made to and disbursed by the Probation Department.
There are many benefits to paying and receiving child support through the Probation Department. The Department will track every dollar received and paid out, so you don’t personally have to account for every payment. However, that doesn’t mean you should completely abdicate your accounting responsibilities, because errors can happen (as will be discussed below). But in the event you do have to go to court in the future and prove what was or wasn’t paid, an accounting from the Probation Department can make that process significantly easier and less time consuming.
For parties that don’t remain amicable after their split, the Probation Department can serve as a “middle man” or neutral third-part to accept and disburse payments. This eliminates personal dealings between the parties when it comes to child support payments, and most importantly, the child won’t have to become the deliverer of the child support payments.
When determining the proper method of paying child support (i.e. whether to pay directly or through the Probation Department), parties that amicably resolve their child support issues are given greater leeway than those who don’t. As previously discussed, parties can choose direct payment and keep their child support payments out of the Probation Department. However, payment through the Probation Department is the default when proceeding in court (as previously discussed), as is payment via wage garnishment. A hybrid option can also occur where the parties choose to have the obligor pay child support directly to the Probation Department rather than through automatic wage garnishment, and in that circumstance the Court will generally “rubber stamp” such an agreement. However, if there is no agreement on the method of payment to the Probation Department, wage garnishment will be ordered by the court unless good cause is shown as to why it shouldn’t occur.
If an obligor is paying child support directly to Probation rather than having his/her wages automatically garnished and paid by the employer to the Probation Department, the obligor will have to remember to make each payment timely. As this creates another task to remember on an ongoing basis, some obligors may prefer wage garnishment because it’s automatic. In order for wage garnishment to occur, an Income Withholding Order must be entered by the court and then provided to the obligor’s employer. Once approved your implements the terms of the Order, you don’t have to worry about initiating the payment. You should, however, make sure that the monies are in fact being deducted from your wages and are being paid to the Probation Department.
Another benefit of having child support paid through the Probation Department, mainly for obligees, is that Probation does more than just track the payments made and disbursed. The Probation Department can take certain actions automatically to ensure that a child support obligation is being paid. The New Jersey Probation Department can enforce payment by seizing a tax refund, suspend drivers’ licenses and passport renewal rights, issue a warrant for the obligor’s arrest, and report the failure to pay child support to the Credit Reporting Agencies. While a judge could order that any of the above ramifications occur when an obligor has failed to pay child support in a direct pay case, these results would require a motion to be filed. With administration and enforcement of payment through Probation, these enforcement mechanisms can occur automatically, when applicable.
While there are certainly many positive aspects to having child support paid and receive through the Probation Department, there are downsides to payment through Probation as well. For obligors paying through wage garnishment, either willingly or unwillingly, there is a certain amount of privacy lost when your employer knows you have a child support obligation to pay and also knows the amount. Further, if there is an arrears payback component to the wages garnished, they’ll also know you have fallen behind on your child support obligation. While employers are legally prohibited from firing an obligor for having their wages garnished for child support purposes, certain obligors may not want their employers to know that much about their personal lives.
There can also be a certain amount of over-reliance on the part of obligors when child support is paid through the Probation Department. While an obligor may assume the Probation Department will end child support upon emancipation, it is not that simple. For example, while there are instances where a child may be emancipated upon high school graduation and failure to continue on with college, the Probation Department cannot just unilaterally terminate the child support payments at the time of graduation, absent an agreement between the parties or a court order. Keep in mind also that the laws on emancipation are changing, as we had discussed on this blog previously. Further, when payments are made via wage garnishment, if paychecks are not scrutinized, there is room for accruing arrears when a payment is missed or not made in full because the paycheck was not sufficient to cover the full amount of the obligation. Where an obligor moves between jobs frequently or loses a job, the Income Withholding Order will have to be reissued before wage garnishment can begin again. Just because wage garnishment stops with a job change, the child support obligation does not stop, and this leaves room for arrears to mount and for enforcement to commence.
Additionally, even when child support is paid through the Probation Department, there is always room for error and delay when dealing with a third party. It’s possible that an employer subject to an Income Withholding Order may not make a payment in a timely manner or make it at all. It’s also possible that a payment may not be accounted for by the Probation Department. If the payment is received by the Probation Department, it may take some time for it to be posted to the account and eventually paid out to the obligee. All of this can be very frustrating for both parties, who lose a certain measure of control over the process when the issue of child support is turned over to the Probation Department. Mistakes are a lot more difficult to clear up, especially when money is paid into an account in error. For example, a deposit could be made after the emancipation of a child or after the downward modification of a child support order, in which event the obligor would have to work with the other party (which may be difficult depending on their relationship) and with Probation, and possibly go through the court, to rectify the error.
Just as parties can initially agree to begin with payment of child support directly and then move to enforcement and administration through the Probation Department, parties can terminate administration and enforcement through Probation and go back to direct pay. However, this is more difficult to do without consent. Further, while parties can switch between payment by wage garnishment through Probation and direct payment through Probation, if an obligor has a track record of failing to pay, the court may be hesitant to allow a termination of the wage garnishment provisions of the child support order.
In conclusion, it is imperative that parties involved in child support do their homework prior to entering into an Agreement with your ex. How support is paid can be complicated and it may be best to entrust your child support payment plan to an experienced and competent family law attorney who can explain the benefits and risks. The attorneys at Jacobs Berger, LLC are well versed in the different ways child support can be paid, and as part of a case assessment, can help you understand what method of payment may be best suited for your case and your child. For more information, contact us to schedule your strategy session with our team.
