By James Jennings
The Court has ordered you to pay child support. So what’s next and were do I send my payments? Intuitively most people would think I just send a check each month to the other party, that being the parent that was awarded legal decision making authority (also known as custody). Well you’d be mostly wrong. In Arizona all child support payments must go first through the state’s Support Payment Clearinghouse.
Arizona enacted Ariz.Rev.Stat. § 46-441 many years ago and it states:
“Unless the court orders that support or maintenance be paid directly to the party entitled to receive it, all orders for support shall direct payment of support or maintenance through the support payment clearinghouse. All orders that specify payments through the clerk of the superior court shall be deemed to require payment to the support payment clearinghouse after a notice to the obligor is issued.”
So how this works is, in most cases, the court will instruct the payor (what they call the obligor) to send the child support payment to the Support Payment Clearinghouse. The payment will be recorded and a check issued to the payee (what they call the obligee). If the payor is employed, the payments will eventually be processed by Wage Assignment.
Wage Assignment
So what is a Wage Assignment exactly? A Wage Assignment is another term for what the law calls an Order of Assignment. Most people think of it as a garnishment. A Wage Assignment is ordered in every case and is an easy, convenient way for the payor to make a child support payment.
How the Wage Assignment Works
The court sends a copy of the Wage Assignment instructing an employer to automatically deduct child support from the payor’s paycheck to comply with a court order. The employer must send the payment to the Support Payment Clearinghouse within two business days of the date the employee (payor) is paid. The Support Payment Clearinghouse records the payment, and mails a check to the payee.
If the payor start a new job then they must:
- Give a copy of the Wage Assignment to the new employer.
- Within 10 days, notify the Clerk of the Superior Court and the Support Payment Clearinghouse in writing of the new employer’s name and address.
- Until a Wage Assignment is in effect with the new employer, the payor must make the payments directly to the Support Payment Clearinghouse.
Unemployed or Self Employed Payors
If the payor is not employed, self-employed or does not have a regular source of income, the convenience of the Wage Assignment process cannot be used to make child support payments. The payor must then make payments directly to the Support Payment Clearinghouse.
The Logic Behind all of This
The reason this was made a law was for accountability. It is proof that the non-custodial parent or the parent ordered to pay child support has actually made the payments.
Ariz.Rev.Stat. § 46-441 goes on to further state:
“The support payment clearinghouse shall have an accounting system for monitoring child support payments. The records of the support payment clearinghouse are prima facie evidence of payment or nonpayment of support.”
On a positive note, this protects the payor of child support from any claims made by the other party that they did not pay child support.
What Happens if Payment isn’t Sent Through the Clearinghouse?
If you do NOT pay your child support through the Support Payment Clearinghouse then you will NOT be given credit for making your child support payment. The Court will consider your “direct payments” as a gift to the other party and you WILL still owe the child support.
Ariz.Rev.Stat. § 46-441 goes on to further state:
“Payment of any money directly to an obligee or to a person other than the support payment clearinghouse shall not be credited against the support obligation unless the direct payments were ordered by the court, or made pursuant to a written support agreement by the parties.”
I have seen this time and time again. People will come in and tell me that they are being sued for back support and they have canceled checks showing that they made direct payments to the other party and when they go to Court the judge says too bad.
I remember one case were a father went to court with his cancelled checks and showed the judge the checks. In the memo space of each check it was written “For Child Support”
The judge said, “Show me in the law where you can make direct payments without a court order.” Of course the dad couldn’t and the judge ordered him to pay back support. BANG BANG went the gavel and that was that.
It sucks. It sucks bad but he was ordered to pay child support through the Support Payment Clearinghouse and he didn’t. This was tantamount to contempt of a court order and the judge dropped the hammer on the guy. He was upset to say the least.
What are the Alternatives to Making Payment Through the Clearinghouse?
The only way around not paying child support through the Support Payment Clearinghouse is by the order of the Court. The only way that can happen is if a judge enters orders to that effect.
Some clients come into my office for a divorce, legal separation, or to establish child support and have real heart burn about paying support through the state’s Support Payment Clearinghouse. They feel it is unnecessary and is government overreach. So they will have us prepare and file a Consent Decree stating that both parties are in agreement that all support payments will be sent directly to the person receiving child support and not through the Support Payment Clearinghouse as the law directs.
However, there are some draw backs on doing a Consent Decree. A Consent Decree is not a silver bullet or a get out of jail free card when dealing with § 46-441.
First, the Court charges two filing fees when any wants to do a Consent Decree. It’s like being double charged by the state. These filing fees are not cheep. As of the posting of this article Maricopa County Superior Court charges the Petitioner a fee of $338 and the Respondent a fee of $269. Ouch! That’s $607 just in government fees. The good news is the Respondent’s fee doesn’t have to be paid until the Consent Decree is ready to file and that is normally a couple of months after the initial filing in an uncontested case.
Second, if both parties want to fight it out in Court then a Consent Decree might not be possible. Then it’s up to the trail judge if he or she wants to entertain the notion of direct pay and it’s been my experience most don’t.
Third, and may be the most important, is that even if you file a Consent Decree there is no guarantee a judge will approve of the parties agreeing to direct pay. If this is the case the Judge will say no and reject the Consent Decree, thus sending it back to be redone and the direct pay clause being removed from the document. You will be then out that extra $269 you paid the Court for the privilege of requesting direct pay. The Court will NOT refund the Respondent’s filing fee.
So, is it worth the hassle of requesting direct pay? That is for you to decide. How opposed are you to sending a payment into the state each month for your children? That’s a personal choice each couple has to make. It may be cheaper and easier in the long run just to make the payment to the clearinghouse. On the other hand some people like the thrill of rolling the dice and seeing what happens.
My Opinion
In my ever so humble opinion Ariz.Rev.Stat. § 46-441 is good public policy. It protects that payor of child support and the children for whom the support is need. But that is just my own personal opinion and like my dad always used to say, “Son opinions are like butt-holes, everyone has one and they usually stink.” My father was truly an Irish sage. I could always count on him for words of wisdom.
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