Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

Do People Go To Jail For Unpaid New Jersey Alimony or Child Support?

The short answer I yes, they do.  However, my experience as a New Jersey Family Lawyer dictates that usually incarceration is the “last resort,” for unpaid NJ Child Support or Alimony.  When support is being paid through the Probation Department, I always tell my client’s to “schmooze” the Case Worker handling their account.  Then, if the offender becomes deep in arrears, the Case Worker can have a warrant issued right then and there.  Some people mistakenly displace their frustrations at their Case Worker.  Big mistake.  As the old expression says, “You can catch more flies with honey than with vinegar.”  

Please also refer to a piece I wrote earlier this year, “How Can a New Jersey Child Support Lawyer Help Me Make Sure I Receive My Money?”

The New Jersey Code of Criminal Justice classifies willful non-support of a spouse, child or other dependent as a fourth degree offense. Title 2C, specifically section 24-5 provides the following: a person commits a crime of the fourth degree if he willfully fails to provide support which he can provide and which he knows he is legally obliged to provide to a spouse, child or other dependent. In addition to the sentence authorized by the code, the court may proceed under section 62-1.

Provisions of 2C: 62-1 merely provide alternative sentencing for willful non-support of a spouse, child or other dependent. Subsection (a) of the provision addresses an order for support pendente lite. It is relevant to note that at any time after a sworn complaint is made charging an offense under 2C:24-5 and before trial, the court may enter such temporary order as may seem just, providing for the support of the spouse or children, or both, pendente lite, and may punish a violation of such order as for contempt.

Furthermore, a court can order community service instead of incarceration for non-support violations. The relevant provision of the New Jersey Statutes Annotated is 2A: 34-23e. This section of the N.J.S.A. provides that in addition to incarceration of a person found by the court to be in contempt of a support order issued by the Superior Court, Chancery Division, Family Part, the court may order such person to perform community service for part, or all, of the person’s period of incarceration. The most applicable case law on the matter can be found in the case of Saltzman v. Saltzman, 290 N.J. Super. 117 (App. Div. 1996). Here, the court found that the payor had the right to a hearing on the issue of his ability to pay support prior to incarceration. 

In addition to the laws on criminal non-support, New Jersey courts also provide other remedies for violation of parenting time, child support, and/or alimony. When determining other remedies available for violation of either parenting time, child support or alimony, New Jersey courts will look to Rule 5:3, which discusses general provisions for family actions. Particularly, the courts will apply Rule 5:3-7, a provision that specifically provides for additional remedies on violation of orders relating to parenting time, alimony, or support.  

Subsection A of Rule 5:3-7 deals with custody or parenting time orders. If a New Jersey Family Court finds that a party to the divorce proceeding has violated an order involving custody or parenting time, the following remedies, either individually or in conjunction with one another, may be ordered by the court:

§  Compensatory time with the children

§  Economic sanctions, including but not limited to the award of monetary compensation for the costs resulting from a parent’s failure to appear for scheduled parenting time or visitation such as child care expenses incurred by the other parent

§  Modification of transportation arrangements

§  Pick-up and return of the children in a public place

§  Counseling for the children or parents or any of them at the expense of the parent in violation of the order

§  Temporary or permanent modification of the custodial arrangement provided such relief is in the best interest of the children

§  Participation by the parent in violation of the order in an approved community service program

§  Incarceration, with or without work release

§  Issuance of a warrant to be executed upon the further violation of the judgment or order

§  Any other appropriate equitable remedy

Subsection B of Rule 5:3-7 addresses alimony or child support orders. If a New Jersey Family Court finds that a party to the divorce proceeding has violated an alimony or child support order, the following remedies, either individually or in conjunction with one another, may be ordered by the court:

§  Fixing the amount of arrearages and entering a judgment upon which interest accrues

§  Requiring payment of arrearages on a periodic basis

§  Suspension of an occupational license or driver’s license consistent with law

§  Economic sanctions

§  Participation by the party in violation of the order in an approved community service program

§  Incarceration, with or without work release

§  Issuance of a warrant to be executed upon the further violation of the judgment or order

§  Any other appropriate equitable remedy

Lastly, subsection C of Rule 5:3-7 addresses enforcement of relief under provisions of domestic violence restraining orders not subject to criminal contempt. If a New Jersey Family Court finds that a party to the divorce does not comply with the provisions of a restraining order issued pursuant to the Prevention of Domestic Violence Act, not subject to criminal contempt, the court may grant the following remedies, either individually or in conjunction with one another:

§  Economic sanctions

§  Incarceration with or without work release

§  Issuance of a warrant to be executed upon further violation or non-compliance with the order

§  Any appropriate remedy as specified by subsection (a) or (b), applicable to custody or parenting time issues or alimony or child support issues

§  Any other appropriate equitable remedy