You’ve received a notice saying you owe back child support. You don’t believe you owe that money, or you don’t believe you owe the amount that they say you owe. What can you do?
In any child support arrearage case, there are two questions to ask:
1. Was the original child support order, lawfully entered?
2. Have you paid all the child support that you were required to pay?
How to argue that a child support order was unlawfully entered
Look at the circumstances under which the court entered the order. If you appeared at the original child support hearing, or if you received notice of the original hearing but didn’t go, then you generally can’t argue that the child support order was unlawfully entered. If you didn’t raise objections to the way the order was entered when you had the chance, you can’t raise objections at a later date. Additionally, if you did raise objections to the way the order was entered, but the judge overruled your objections and you didn’t appeal, then you also can’t raise the same objections at a later date. This rule is called res judicata. Res judicata means that you can’t relitigate issues that you’ve already raised. Under res judicata, you also can’t raise issues that you previously had the chance to raise, but didn’t.
However, you may be able to argue that a child support order was unlawfully entered if you didn’t receive notice of the hearing where the court entered the order. The Fourteenth Amendment to the Constitution says, “nor shall any state deprive any person of life, liberty, or property, without due process of law.” In Mullane v. Central Hanover Bank & Trust, the U.S. Supreme Court ruled that two essential components of due process are: 1) notice and 2) opportunity to be heard. If a court does not give you notice of a hearing, and an opportunity to be heard at the hearing, then the court may not lawfully enter any order that deprives you of property. Thus, a court may not enter a child support order without giving you notice and opportunity to be heard, because a child support order deprives you of money, which is considered property. So, under the rule in Mullane, if the court didn’t give you notice of the hearing, and an opportunity to be heard at the hearing, then any child support order that the court enters, is illegal.
If you have received a notice that you have a child support arrearage, and the court entered the original order without notice to you, you should definitely contest the arrearage.
How to argue that you have paid all the child support you were ordered to pay
Two key points to remember in arguing that you have paid all required child support are:
1. You may introduce any evidence that is “relevant” as long as there is no law that specifically excludes that type of evidence.
Under Oklahoma state law, “relevant evidence” means:
“Evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
Thus, if you have any evidence that makes it more likely that you have paid child support, you may introduce that evidence unless there is another law that specifically excludes that type of evidence. To read the Oklahoma laws on evidence, click here.
2. If the other parent, or the state or federal government, argues that you didn’t pay child support, they have the burden of proof. Thus, the other side has the burden to show that you didn’t pay child support. You don’t have the burden to prove that you did pay. In other words, if the other party can’t prove that you didn’t pay, then a court can’t punish you for not paying.
If you are in a criminal proceeding for not paying child support, the other side must prove their case beyond a reasonable doubt. Thus, the other side must prove that there is no reasonable doubt that you didn’t pay the required amount.
If you are in a civil proceeding for not paying child support, the other party must prove their case by a preponderance of the evidence. “Preponderance of the evidence” means “more likely than not” or 51%. Thus, in a civil proceeding for not paying child support, the other party must prove that there is a 51% chance that you didn’t make your child support payment.
Understanding the difference between a criminal and a civil proceeding can be difficult. For more information on the difference between a civil and a criminal case, click on my earlier blog post, here. (Note: In my earlier blog post, I noted that all criminal proceedings are filed “in the name of the state.” Generally, this means that only the district attorney – and not a private party – may file a criminal charge, and a private party may not file a criminal case. However, in reference to child support payments, Oklahoma law does allow a private party to file a criminal contempt charge for failure to pay.) If the state – or the other parent – is asking the judge to order jail time or a fine for failure to pay child support, then you are in a criminal case.
You May Need the Assistance of Counsel
Much of the law relating to child support arrearages, such as what constitutes proper notice, the rules of evidence, and whether you are in a civil or criminal case, is very complicated. I have only been able to scratch the surface in this post. If you have been hit with a child support arrearage and you don’t believe you owe the money, you probably need an attorney to contest the arrearage. The Persaud Law Office has helped many people navigate the difficult world of child support. Contact us today.
Photo courtesy of https://thebluediamondgallery.com/financial05/c/child-support.html. Licensed under Creative Commons 3.0.
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