Where should one enforce a support order when the obligor resides elsewhere?

Posted Wednesday, November 2nd, 2016 by Gregory Forman
Filed under Alimony/Spousal Support, Child Support, Contempt/Enforcement of Orders, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

A common dilemna in family law is enforcing a support order when the obligor no longer resides in the issuing state. There are two reasonable ways of resolving the matter. One option is to enforce the order in the issuing state and, if necessary, register the resulting enforcement order in the obligor’s state of residence. The other option is to simply register the support order in the obligor’s state of residence and enforce it there. One can shorthand these options as “enforce and then register” and “register and then enforce.” Often it will be unclear which is the better option until litigation is well underway. However by understanding the obligee’s goals and the risks with each option, one can guide the obligee to an intelligent decision on the options.

The major risk of initially bringing enforcement proceedings before registration is that the obligor may simply fail to appear at the enforcement hearing. This will almost always result in the obligor being held in contempt, and likely result in a bench warrant being issued for the obligor’s arrest. However, it will require a second proceeding in the obligor’s state of residence to actually collect past-due support. The trouble and expense of two proceedings in two states can be prohibitive, especially for a litigant who isn’t receiving support.

In contrast, a support order can be registered for enforcement in the obligor’s state of residence through the mechanisms of the Uniform Interstate Family Support Act (UIFSA). UIFSA has streamlined procedures for registering and enforcing foreign support orders, and each state has a support collection services government agency that will assist in the registration and enforcement process at no or relatively low cost (if not as aggressively or quickly as a private attorney might).

There are a number of factors that can weigh in favor of enforcing before registering. If one suspects the obligor will return to the issuing state for the enforcement hearing, there won’t be a need to register the resulting enforcement order in the obligor’s state of residence. In such circumstances, enforcing in the issuing state is the best option.

Also, there may be times in which the obligee knows the obligor will want to be physically present in the issuing state in the near future. In those circumstances, if the obligor doesn’t appear for the contempt hearing, a bench warrant will likely issue. That bench warrant can be enforced when the obligor returns–alleviating the need to register the enforcement order in the obligor’s state of residence. Sometimes the obligee would be happy to make the obligor a fugitive from the issuing state–such as when the obligee thinks the obligor’s visitation with their children is problematic. Turning the obligor into a fugitive may be very attractive even if the order doesn’t get enforced immediately.

If the obligee still lives in the issuing state, the convenience of starting the litigation in the state of the obligee’s residence can be significant. Enforcing a support order requires more time and skill than merely registering a foreign support order for enforcement. This is especially true when there might be factual disputes as to the amount of past due support, as the resulting order will indicate the amount due and the manner in which that amount is to be paid and will require little interpretation to enforce. Where support is paid through the court, and there is a court record showing the out-of-compliance amount, register and then enforce becomes a more attractive option.

Further some states are more aggressive than others in enforcing support orders. South Carolina is particular aggressive in its use of contempt sanctions, so, in my practice, this is almost always a factor in favor of seeking enforcement in South Carolina before registration elsewhere. However an obligee seeking to enforce a foreign support order against a South Carolina resident may be better off registering the order here and then enforcing it.

Few of the above factors are necessarily determinative by themself. However, discussing them with the client and weighing them out can help determine whether the better option is to register then enforce or to enforce and then (if necessary) register.

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