CAN
I GO TO JAIL IF I DON’T GET A JOB???
(DO I HAVE TO BE EMPLOYED? WHAT IF I CAN'T GET WORK?)
On February 2, 1998, the California Supreme Court published
the Moss opinion (Moss vs. Superior Court. 17 Cal. 4th 396 ). Prior to
January 1998, many judges and commissioners were divided as to the remedies available to
them when faced with a criminal contempt for non-payment for support (P.C. 270) when
someone raised the issues of inability to find work.
 The prevailing thought was that making someone work to pay
support was involuntary servitude. One could go to jail for not paying support but not for
failure to get a job or for failure to pay welfare arrears. This has now changed under
Moss as least to the failure to pay ongoing child support.
Moss now stands for the proposition that if a person refuses
to work, and does not pay the support, they most likely can be sentenced to jail time for
failure to work. Remember, Moss involved a current support order and not arrears over five
years old (which are not subject to criminal contempt).
Moss also involved a fact pattern where the support was
still ongoing. The key here is that Mr. Moss did not pay anything at all. So, if you are
in arrears, PAY SOMETHING each month, even if it is less than the amount ordered.
 If you loose your job, and file an OSC for a downward
modification, if you have paid zero for the 45-60 days it takes to get your OSC filed and
heard, the hearing officer will be less sympathetic to your plight. Go and actively look
for a job, and take copies of any letters of rejection, interviews, and other documents
(similar to what unemployment is going to want anyway) to show that you are trying.
If you do this, then most judicial officers will give you a
60 to 90 day review to see if you can find employment, even if it is less than you
normally make or in a different field. This is called the "burger flipping"
order, or an order to find something (even if it is McDonalds) to show the court that you
are trying. Also, if you are on unemployment or disability, send in 25% of that money to
the DA with a letter that you lost your job and are looking. If you do not find something
within 30 to 45 days, file the OSC (even if in pro per) because there is no retroactivity
beyond the filing date of your request to lower your support. Most people get into trouble
when they ignore the order.
Most criminal contempt charges are filed when you go six
months to a year without making a single payment. When you do file that OSC asking the
Court to lower the support, (1) you have got a big arrears already; (2) the hearing
officer won’t be real sympathetic; (3) the DA will treat you like a deadbeat; (4) and
you may end up with a PC 270.
So, if you find yourself not being able to make the entire
payment, pay something and don’t ignore the child support completely.
|
Family Law in California
Marsha Baucom holds degrees in Psychology, and Family Law and has been
practicing as a Licensed California Family Law Attorney representing
thousands of clients for over a decade.
She is respected by her peers, and clients that have enjoyed the
benefits of her legal representation.
This is experience you can count on.
|
