Child Support and the Law of Diminishing Returns

By Attorney Gregg Herman
January 2, 1998

For years now, the legislature has been preoccupied with passing laws to effectively collect child support. These laws have done quite a bit of good and in some cases have been remarkably effective. Yet, in light of the most recent legislation, the question must be asked whether there is a point of diminishing returns.

There are two extremely effective laws for collecting child support which have been in effect of several years. One is the mandatory income assignment law. No longer can payors argue that they should be “trusted” to make the payment. As long as there is a payroll, the child support will be sucked right off the paycheck and the payer has no more choice in the matter than s/he does for paying FICA.

Where there is no payroll, the law of remedial contempt is quite effective. No one, child support payers included, likes the idea of going to jail. The inherent power of the court to impose incarceration as a sanction for failing to remedy a contempt citation is extremely powerful.

No, these laws do not sweep all potential payers in their net. As a result, the legislature, whose members have to run for election periodically, apparently does not feel satisfied to leave bad enough alone. Last session, the latest drive against “deadbeat dads” as they are called, resulted in the passage of legislation known as the PRWORA bill, which stands for The Personal Responsibility and Work Opportunity Reconciliation Act of 1996. (PDF) Wisconsin enacted the federal mandates in 1997 Wisconsin Act 191.

While much of PRWORA is, at a minimum, harmless, and some provisions may in fact be somewhat helpful, one provision may prove to be even counterproductive. The point of diminishing returns may have been reached with legislation to collect child support.

Under PRWORA, if the payor is in arrears, among other remedies, that person is subject to having his or her driver’s license and registration suspended. Worse, professional licenses can also be suspended for nonpayment of support.

The reason these suspensions may be counterproductive are found in the nature of remedial contempt. If a payor is found in contempt, prior to applying any sanctions, the court must first afford an opportunity to purge the contempt. It is only after a purge had failed that the court may impose sanctions, including incarceration. However, to incarcerate, the court must find that the payor had the ability to purge, but did not. Otherwise, jail become a debtor prison.

It is the “ability to purge” which is key. The typical purge order is to either to seek employment or to pay current support and arrears from current income. This means, of course, that the payor must have the ability to work. Deprivation of driving makes employment impossible in many areas of Wisconsin. While suspending a driver’s license could still allow an occupational license, suspending the car’s registration could prevent transportation to work altogether.

More directly, suspension of a professional license, whether to be a barber, beautician, bartender or a lawyer, effectively deprives the payor of the very means by which the support is supposed to be paid. And, in so doing, the legislature has then deprived the court of the power of incarceration for failing to purge a contempt citation.

During the legislative process, a committee from the State Bar Family Law Section met with representatives of the Department of Workforce Development and pointed out this problem, among others. While an agreement was reached to provide the payor with prior notice and an attempt to correct the support record prior to suspension, the Department insisted that the legislation includes mandatory suspension, arguing that it is federally mandated.

The Department argued that the threat of license suspension was just that – a threat – and should be sufficient to avoid actually suspending the license. While this may be true in certain cases, there are others where a payor would prefer not to practice his or her profession if it meant avoiding paying child support. In such cases, incarceration would serve as a far greater threat than having to get a job and make payments.

Were the suspension power merely discretionary with the court, this would not be as much of a problem. But this power is administrative and largely absent from judicial review and consideration.

There is a hard core of self-employed, underworld payors from whom collection is difficult if not impossible. Merely passing laws, without thoughtful consideration of the consequences, is not going to solve this problem. To pass laws which have the reverse effect is simply foolish.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.