Willful Failure to Pay Child Support: Charges and Penalties in Bismarck, ND
Are you n trouble for the nonpayment of child support? If you are facing charges for willful failure to pay child support in Bismarck, ND, it’s crucial to understand the serious legal consequences of such an offense. The state of North Dakota takes child support obligations seriously, and failure to comply with these obligations can lead to criminal charges. In addition to hefty penalties, you could face significant fines or even imprisonment. Here’s everything you need to know about the charge, its penalties, and how to defend against it.
What is Willful Failure to Pay Child Support in North Dakota?
Under North Dakota Century Code Section 12.1-37-01, a person commits the offense of willful failure to pay child support if they knowingly or intentionally fail to make court-ordered child support payments. This law applies when child support is mandated by a court or other governmental agency with the authority to issue such orders, and the individual deliberately avoids making the payments.
Penalties for Willful Failure to Pay Child Support
The penalties for this offense depend on the amount of unpaid child support:
- Class C Felony: If the unpaid amount is greater than $2,000 or six times the monthly child support obligation, the offense is classified as a Class C felony, punishable by:
- Up to five years in prison
- A fine of up to $10,000
- Or both
- Class A Misdemeanor: If the unpaid amount is greater than $1,000 but less than the felony threshold, the offense is a Class A misdemeanor, carrying:
- Up to 360 days in jail
- A fine of up to $3,000
- Or both
- Class B Misdemeanor: If the unpaid amount is less than $1,000 or three times the monthly child support obligation, the offense is a Class B misdemeanor, punishable by:
- Up to 30 days in jail
- A fine of up to $1,500
- Or both
Full Language of North Dakota Century Code Section 12.1-37-01
Below is the full statute for Section 12.1-37-01: Willful Failure to Pay Child Support:
North Dakota Century Code Section 12.1-37-01: Willful Failure to Pay Child Support – Classification of Offenses – Affirmative Defense – Penalty
- A person is guilty of an offense if the person willfully fails to pay child support in an amount ordered by a court or other governmental agency having authority to issue the orders.
- a. If the unpaid amount is greater than the greater of two thousand dollars or six times the monthly child support obligation, the offense is a class C felony. b. If the unpaid amount is greater than the greater of one thousand dollars or three times the monthly child support obligation, but less than the amount required under subdivision a, the offense is a class A misdemeanor. c. If the unpaid amount is less than the amount required under subdivision b, the offense is a class B misdemeanor.
- If the failure to pay child support occurs while the defendant was in another state, and while the child was in this state, the offense must be construed to have been committed in this state.
- It is an affirmative defense to a charge under subsection 1 that the defendant suffered from a disability during the periods an unpaid child support obligation accrued, such as to effectively preclude the defendant’s employment at any gainful occupation. This defense is available only if the defendant lacked the means to pay the ordered amounts other than from employment.
- For purposes of this section, “child support” has the meaning provided in section 14-09-09.10.
- This section applies only to the willful failure to pay child support after August 1, 1995.
- In a prosecution under this chapter, a copy of a record certified under section 14-08.1-08 is admissible as prima facie evidence of the contents of the record.
Maximum Length of Probation for Child Support Offenses
If convicted of failing to pay child support, probation may be an alternative to incarceration. Under Section 12.1-32-06.1, the maximum length of probation for felony offenses such as this is five years. For misdemeanor offenses, probation could last up to two years. During probation, offenders must adhere to strict conditions, such as making back payments.
Defending Against Willful Failure to Pay Child Support Charges
Being charged with failure to pay child support can have serious consequences, but there are defenses available:
- Disability Defense: One key affirmative defense under North Dakota law is if the defendant was physically or mentally disabled during the period in which the unpaid child support accrued. If the defendant’s disability prevented gainful employment, this can be used as a defense.
- Lack of Intent: If the failure to pay was not willful or intentional, and there were circumstances beyond your control (such as a sudden financial crisis), this may help reduce or dismiss the charges.
- Mistake of Fact: If the defendant can prove they were unaware of the payment obligation, or there was a misunderstanding regarding the amount or date, this may serve as a defense.
- Payment Disputes: If payments were made, but the state did not record them correctly, presenting evidence of those payments can be a crucial defense.
- Financial Hardship: In some cases, significant and documented financial hardship may be used as a defense or to mitigate penalties.
How These Charges May Arise in Practical Situations
Failure to pay child support can arise in a number of real-world situations:
- Unemployment: If someone loses their job and fails to modify their child support order, they could quickly accumulate arrears, leading to criminal charges.
- Out-of-State Living: If a parent relocates out of state and stops making payments, they can still be prosecuted under North Dakota law if the child remains in the state.
- Failure to Modify Orders: If circumstances change—such as losing a job or taking a significant pay cut—and the individual does not modify their child support order, they may be charged for failing to meet their obligations.
Importance of Hiring a Defense Attorney in Bismarck
If you are facing charges for willful failure to pay child support, it’s essential to seek legal representation immediately. A skilled defense attorney can help you:
- Examine the Evidence: Your attorney will review the evidence presented against you, such as payment records, and determine whether the charges are valid.
- Build a Defense: Whether you have a valid affirmative defense or another explanation for the non-payment, your lawyer will develop a defense strategy that’s tailored to your case.
- Negotiate with Prosecutors: In some cases, your attorney may be able to negotiate a reduced sentence or a payment plan to help avoid the most serious penalties.
Frequently Asked Questions About Willful Failure to Pay Child Support
What is the penalty for failing to pay child support in North Dakota?
Penalties depend on the amount owed. If the unpaid amount exceeds $2,000 or six months of support, it’s a Class C felony with up to five years in prison. Lesser amounts may lead to misdemeanor charges.
Can I go to jail for not paying child support?
Yes. If you willfully fail to pay child support, you can face felony or misdemeanor charges, which could result in imprisonment.
What should I do if I can’t afford my child support payments?
If your financial circumstances have changed, you should seek a modification of your child support order through the courts. Failing to modify the order and continuing to miss payments could lead to criminal charges.
Is disability a valid defense for not paying child support?
Yes. If you were disabled and unable to work during the period when payments were missed, this can be used as a defense.
What happens if I live in another state and stop paying child support?
If your child lives in North Dakota, you can still be prosecuted for failing to pay child support, even if you reside in another state. You would then expect a warrant to be issued for you.
Can I avoid jail by paying back the missed child support?
In some cases, paying back the child support before trial or as part of a plea agreement may help you avoid jail time. However, this depends on the specifics of the case and any negotiation with the prosecution.
Can child support arrears be waived?
Generally, child support arrears cannot be waived, but you may negotiate a payment plan or other terms to avoid severe penalties.
Can I still be charged if I wasn’t aware of the payment order?
Yes, but you may be able to argue that you were unaware or did not receive proper notice of the child support order, which could serve as a defense.
How long can probation last for failure to pay child support?
Probation for felony failure to pay child support can last up to five years, while misdemeanor probation can last up to two years.
What is the difference between willful failure to pay child support and accidental failure?
Willful failure implies that the person intentionally chose not to pay, while accidental failure could occur due to misunderstanding or unforeseen circumstances, which might mitigate penalties.