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
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.
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.
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.
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.
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.
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.