Collateral Consequences of Failure to Pay Child Support

Child Support 2

Lansing Failure to Pay Child Support Defense Attorney

Aside from the penalties we talked about in the last blog entry regarding the direct consequences of being convicted of failure to pay child support (prison, fines, probation) there are collateral or secondary consequences as well.

Immediate Income Withholding—Your employer will be required, if ordered, to deduct earnings from your paycheck and submit it to the Friend of the Court. Those payments will be divided and applied to your current child support order, arrears, alimony, and fees. Up to 50% of your net income can be withheld. There is an interstate agreement throughout the United States to enforce child support obligations from other states. You cannot escape your obligation simply by moving away to another state.

Tax Offset—Your state and federal income taxes can be seized and applied to an outstanding child support order.

Bank Account Lien—Your bank accounts can be frozen.

Credit Reporting—Your arrears can be reported which will affect your credit score.

Driver’s License Suspension—Your driver’s license can be suspended as well as sporting licenses (hunting, fishing) and professional licenses (day care).

Passport Denial and Suspension—This will be done through an automated system.

Incarceration—A judge or referee can order you to appear and “show cause” for why you should not be held in contempt for failing to obey a court order. You can be sentenced to jail for contempt of court.

 

Can I Make a Motion to Modify My Child Support Order?

Yes, and you should if you have had a chance in income, liabilities, or job that could get your order of support lowered, Keep in mind that even if successful, it will only change your order of support going forward from the day of the motion. It doesn’t have retroactive application unless you can prove that the original order was erroneous to begin with. Even that can be hard to win on because if that was the case you should have noticed it and motioned the court earlier.

 

Can the Other Parent Waive the Arrears?

Maybe. The parent can request to waive the arrears but the court will inquire as to why the parent believes this is in the best interest of the child. Some judge’s will allow it while others will not. If the other parent is receiving governmental assistance, they will not be able to waive the arrears unless the parent is willing to forego the governmental assistance as the government makes pursuing arrears and child support a contingency of receiving government aid.

 

Will a Change in Custody or Parenting Time Help?

Yes, a change in custody, parenting time, or overnight visits will help reduce your child support order.

 

Can My Arrear Payments be Lowered?

You can ask the court to lower your monthly payment on your arrears, but not the actual amount of the arrears. If you cannot afford the current monthly payment and a lower one would be more manageable, you can motion the court to do that.

 

Once you fall behind on your child support obligations, it doesn’t take long for an avalanche of consequences to come falling down and you can quickly get smothered if you fail to act in a timely manner.

 

Hiring the right attorney can make a difference. A skilled attorney can argue for a bond reduction so you can continue to work and pay arrears while the case is pending. An experienced attorney can persuade even a reluctant judge to agree to a suspended sentence which can help you take advantage of good plea negotiations. A criminal defense attorney can also spot inaccuracies or defenses that can be raised that could improve your case.

 

If you have been charged with failure to pay child support (FTPCS), we can help. There may be options available to make your burden lighter and stop the incessant array of incidental consequences that follow getting behind on child support. We are experienced in arguing for bond reductions, modifying the payment amounts, correcting the arrears total, and successful plea negotiations and suspended sentences. Call Austin Legal Services, PLC today at (517) 614-1983 to speak to our Michigan criminal defense attorney about your case.

 

Representing clients throughout Michigan in the counties of Ingham, Eaton, Clinton, Shiawassee, Lenawee, Kent, Livingston, Jackson, Gratiot, Washtenaw in the cities of Lansing, East Lansing, Mason, Holt, St. Johns, Bath, Delta Township, Lansing Township, Hastings, Ithaca, Corunna, Grand Rapids, Howell, Brighton, Jackson, Ann Arbor.

 

 

Failure to Pay Child Support (FTPCS)

Child Support

 

Lansing Michigan Criminal Defense Attorney

 

If you have been ordered by the court to pay support for a current or former spouse or for the support of your child and you do not make those support payment or you do not make them on time, you can be charged with failure to pay child support. Failure to pay child support is not only a felony which carries hefty fines and possible prison time, but a lot of collateral consequences as well. It can have a devastating impact on your life and finances.

 

What the Prosecutor Has to Prove

 

The elements that the prosecutor has to prove are relatively simple as far as crimes go. They will have to prove the following:

 

1)    The was an order of support

2)    You received notice of that order of support

3)    You failed to make the payments as ordered or in the timeframe as ordered

 

Penalties

 

The penalties you face if convicted are up to four years in prison and $2,000 in fines.

The court can and most likely will order you to pay the cost of extradition if Michigan had to come and get you from another state. That is why it is best to turn yourself in if you know you have a warrant.

 

Bond

 

There is a special bond schedule if you are charged with failure to pay child support. According to statute, bail must be set at $500 or 25% of your arrears (the amount of support you are behind on) until the time of your arraignment. After arraignment, that bond is to remain unless good cause is shown. The court can set a cash bond up to 100% of the arrears plus court costs under the Support and Parenting Time Enforcement Act. MCL 552.631.

 

Suspended Sentence

 

Upon conviction, the court may suspend sentence if bond has been posted with sureties to the court. A suspended sentence is when the court accepts a plea, but holds off on sentencing the defendant for a period of time. Usually the defendant will come back for sentencing in 11 months as that is the statutory maximum. That gives the defendant an opportunity to pay off the arrears and if the defendant meets the conditions of the plea, at the time of sentencing the conviction may be reduced to a lesser charge or defendant may receive a better sentence such as no jail, depending on what the agreement was.

 

Caveat: not all judges will do suspended sentences, even for this charge. In that case, you will have a much shorter time to come up with the money before sentencing.

 

You will be under bond conditions pending the sentencing. As a condition of bond while the sentence is suspended, the court must order the defendant to comply with the support order. If the defendant does not comply with the support order, the court may order the defendant to appear and “show cause” why they should not impose sentence and enforce the bond. After the hearing the court may enforce bond, impose sentence, or both.

 

It is vitally important that you make every effort to make timely monthly payments not only toward the arrears but the current order as well. If not, you are technically committing another crime by not making your monthly support obligations which could get you brought in for a showcause or nix the bargain you made with the prosecutor.

 

Plea Negotiations

 

This is one of the few types of cases (maybe the only one) where the plea deals are pretty straight forward and across the board regardless of jurisdiction or the circumstances. Depending on whether you are being prosecuted by the state through the county prosecutor or the Attorney General’s Office there may be some variance in the plea offers but usually not that much.

 

The general offers are dependent on how much of the arrears you can pay off. If you can 50% of the arrears off by the time of sentencing (an obvious advantage of the delayed sentencing), the charge will be reduced to the crime of Attempted Failure to Pay Child Support which lowers it from a felony to a high court misdemeanor. That cuts the prison time in half from four years to two years. If all of the arrears are paid by the time of sentencing, the case will be dismissed. I’ve seen some variations along the way which will include misdemeanors from time to time but by and large negotiations usually go something like that. It’s also a case where the prosecutor is more in control than normal because there are so few defenses to the charge. If you had an order of support against you that you knew about and didn’t pay for whatever reason, they got you and they know it. You can refuse and push it all the way but it’s going to be a half day trial for them and they can then ask the judge to hammer you at sentencing. However, the defendant does have some leverage in that this is one of the few cases that you can literally buy your way out of. It is also a good argument against the judge sentencing you to jail because if you are locked away behind bars, you can’t work and pay off your arrears which means your child or children suffer even more.

Will I Go to Jail

 

Many people wrongly assume that no judge will ever place them in jail for this offense because it denies you the ability to pay off your child support arrears. While that might make sense on a certain level, it is completely accurate. If you were willing and able to pay your child support obligation you probably wouldn’t have ended up with this charge in the first place. Also, some are delinquent for many years which renders many judges un-sympathetic to your case. A lot of judges feel that jail is not only appropriate punishment but a “wake-up call” that will shock you back onto the straight and narrow pathway. Don’t assume that a judge will not sentence you to jail for failure to pay child support because it simply isn’t true. It is important to keep in mind that if you do not follow-up with making timely payments or fail in honoring other conditions of your probation you can be sentenced to prison.

 

Defenses

 

There aren’t many defenses to this charge but there are some. It isn’t enough that there was an order of support that you didn’t pay; you had to have notice of it. If you were never served with a copy of the order or they cannot prove you were served with a copy of the order, you would have a valid defense. If you can prove that the order was not lawfully rendered or entered against you, which would be another defense. There have been cases where paternity has been fraudulently established and thus renders the order of support void. Sometimes the arrears will be figured incorrectly. Defendants have also been able to prove proof of payment that for some reason the Friend of the Court did not record. That is why it is important to keep receipts, check stubs, money orders, or bank account information that can prove you paid it. Anything to mitigate the case against you will help.

 

There is recent caselaw that states that “impossibility” to pay is a defense. That is not to be confused with “inability.” Impossibility is an immensely high standard to demonstrate because you would essentially have to prove that not only is it impossible for you to pay now, but that you will never be able to pay as long as you live. Don’t get your hopes up on this one.

 

Non Defenses

 

There are also some things that people believe are defenses that aren’t.

 

It is not a defense if you didn’t pay because you were broke, lost your job, or had no money. Your remedy is to petition the Friend of the Court to modify your order of support to reflect the change in circumstances. You can ask them to modify it to zero if necessary.

 

It is not a defense for you to withhold child support because the other parent is denying you parenting time. Your remedy is to file a motion with the court to hold the other parent in contempt and request an order for make-up parenting time.

 

Signing off on your parental rights will not end the obligation either. Your parental rights include parenting time and sharing in decision-making that affects the child’s life, upbringing, education, etc. Your parental obligations include support and providing care for your child. The one exception this is if the child is adopted because then the adopting parent steps into your role and is now obligated to provide support and care for the child.

 

There are a lot of collateral consequences that go along with failing to pay your child support order. We will talk about these in more depth in another blog entry.

 

If you have been charged with failing to pay child support or spousal support, you need to be represented by an experienced Michigan criminal defense attorney. We can argue for a bond reduction to allow you to work and pay arrears while the case is pending as well as look for any defenses that can be raised. If you are facing a FTPCS charge, call Austin Legal Services, PLC today at (517) 614-1983 to speak to our criminal defense lawyer about your case.

 

Representing clients throughout Michigan in the counties of Ingham, Eaton, Clinton, Shiawassee, Lenawee, Kent, Livingston, Jackson, Washtenaw in the cities of Lansing, East Lansing, Mason, Holt, St. Johns, Bath, Delta Township, Lansing Township, Hastings, Corunna, Grand Rapids, Howell, Brighton, Jackson, Ann Arbor.

 

 

Being Charged as an Habitual Offender

Habitual Offender Lansing Criminal Defense Lawyer

Habitual Offenders

 

Under Michigan law (MCL 769.13) a defendant can be charged as an habitual offender if he has been previously convicted of one or more felonies. If defendant has one prior felony conviction he be charged as an habitual second offender, if defendant has two prior felony convictions he can be charged as an habitual third offender, and if has three or more prior felonies he can be charged as an habitual fourth offender. These serve as sentencing enhancers and increase the maximum penalty for the underlying offense.

 

Sentencing Enhancers

 

Being charged as an habitual offender increases the possible maximum penalty for the main offense you are charged with. If charged as an habitual second offender– the maximum penalty is increased by 25%, habitual third offender– the maximum penalty is increased by 50%, habitual fourth offender– the maximum penalty is doubled or increased by 100%. For example, if you are charged with possession of cocaine, you normally face a maximum sentence of four years in prison. If charged as an habitual second offender, that penalty increases to six years, eight years as an habitual third offender, and 15 years as an habitual fourth offender. If the underlying offense you are charged with has a maximum penalty of 15 years or more and you are charged as an habitual fourth offender, it increases the maximum penalty to life in prison. Habitual offender notices can have a serious impact on the outcome of your case and plea negotiations.

 

Notice Requirement

 

Prosecutors are required by statute to give timely notice to the defendant that they will seek an enhanced sentence by adding the habitual offenses to the charge or charges in the complaint. The prosecutor must provide written notice of the intent to add habitual offense notices to the complaint within 21 days of the defendant being arraigned on the information or complaint. If the arraignment is waived, it must be filed within 21 days of the filing of the underlying offense.

 

Proving the Prior Conviction

 

If the defendant is disputing the validity of the prior offenses, upon filing a motion the defendant can request the court to require the prosecution to offer proof of the prior offenses by a preponderance of the evidence either at the time of or sometime prior to sentencing. This can be done in one of several ways:

 

  • A copy of the judgment of conviction
  • A transcript of a prior trial, plea hearing, or      sentencing
  • A copy of the register of actions
  • Information contained in a presentence      investigation report (PSI)
  • An admission by the defendant

 

Sometimes prosecutors receive inaccurate information such as a charge that was dismissed or pled down to a lesser charge or a charge that is incorrectly listed as a felony conviction. Sometimes convictions will get confused with a defendant with the same or similar name. Birth dates and criminal tracking numbers can be good ways to dispute those.

 

How Prior Offenses Effect Your Case

 

Being charged as an habitual offender effects your case in several ways. Not only does it make your case more severe by increasing the penalty, but it gives the prosecutor more bargaining power. For example, if you are charged with possession of cocaine, a lot of prosecutors will offer a plea to the lesser charge of cocaine use (a misdemeanor downgraded from a four-year felony) as an enticement to avoid trial. If the same defendant is charged with cocaine possession as an habitual offender, then the prosecutor can merely offer to drop the habitual offenses (“habs”) or lower the amount of habs and still plead guilty to the felony charge. Being charged as an habitual offender can often mean the difference from walking away with a felony or misdemeanor conviction. It makes negotiations much tougher. It also increases the likelihood of going to prison or going to prison much longer if you run the gambit of going to trial and lose.

 

What Type of Offenses Count for Habituals?

 

Any conviction for a felony or attempted felony counts. Even if the attempted felony is punishable by up to one year in jail. For example, there are several two-year felonies that can be pled down to one-year crimes but can be counted as an attempted felony for purposes of the habitual offender notices. The two-year felonies count as well.

 

Can out-of-state convictions be counted? Yes, they can. The problem arises sometimes when the punishment or classification isn’t identical to Michigan’s. For example, what may be a felony in Michigan may be a misdemeanor in another state or vice-versa. That makes it increasingly difficult, if not nearly impossible to decide if or how to charge the defendant. Many times prosecutors will simply not add the out-of-state convictions as habs in those instances because it’s too ripe for challenge.

 

Being charged with a felony is bad enough, but being charged as an habitual offender makes it much worse. That’s why it is more important than ever to have an experienced criminal attorney representing you to negotiate effectively or challenge the prior convictions or the notice of the prior conviction. Call Austin Legal Services, PLC today at (517) 614-1983 to speak to our Michigan criminal defense lawyer.

 

Defending criminal charges throughout Michigan in the counties of: Ingham, Eaton, Clinton, Jackson, Shiawassee, Washtenaw, Livingston, Barry, Kent, Gratiot in the cities of: Lansing, East Lansing, Mason, Okemos, Haslett, Bath, St. Johns, Charlotte, Jackson, Corunna, Ann Arbor, Grand Rapids, Brighton, Howell, Ithaca.