The Statute: North Dakota Century Code 12.1-37-01
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.
Overview of Willful Failure to Pay Child Support
The willful failure to pay child support is a serious offense under North Dakota law. It applies to individuals who intentionally disregard court-ordered child support obligations. The offense’s severity depends on the unpaid amount and can range from a class B misdemeanor to a class C felony.
Classifications of the Offense
Class C Felony
- Applies when the unpaid amount exceeds the greater of $2,000 or six times the monthly child support obligation.
Class A Misdemeanor
- Applies when the unpaid amount is between the greater of $1,000 or three times the monthly obligation and the threshold for a class C felony.
Class B Misdemeanor
- Applies when the unpaid amount is below the threshold for a class A misdemeanor.
Penalties for Willful Failure to Pay Child Support
Class C Felony Penalties
| Penalty Category | Details |
|---|---|
| Maximum Period of Incarceration | 5 years |
| Minimum Period of Incarceration | None specified |
| Maximum Fines | $10,000 |
| Minimum Fines | None specified |
| Court Administration Fees | $400 |
| Minimum Length of Probation | None specified |
| Maximum Length of Probation | 5 years supervised probation |
| Supervised Probation Required | Yes |
| 85% Rule Applies | No |
| Offender Registration Requirements | Not applicable |
| Offender Against Children Requirements | Not applicable |
Class A Misdemeanor Penalties
| Penalty Category | Details |
|---|---|
| Maximum Period of Incarceration | 360 days |
| Minimum Period of Incarceration | None specified |
| Maximum Fines | $3,000 |
| Minimum Fines | None specified |
| Court Administration Fees | $200 |
| Minimum Length of Probation | None specified |
| Maximum Length of Probation | 2 years supervised probation |
| Supervised Probation Required | Yes |
| 85% Rule Applies | No |
| Offender Registration Requirements | Not applicable |
| Offender Against Children Requirements | Not applicable |
Class B Misdemeanor Penalties
| Penalty Category | Details |
|---|---|
| Maximum Period of Incarceration | 30 days |
| Minimum Period of Incarceration | None specified |
| Maximum Fines | $1,500 |
| Minimum Fines | None specified |
| Court Administration Fees | $125 |
| Minimum Length of Probation | None specified |
| Maximum Length of Probation | 1 year supervised probation |
| Supervised Probation Required | Yes |
| 85% Rule Applies | No |
| Offender Registration Requirements | Not applicable |
| Offender Against Children Requirements | Not applicable |
Real-Life Examples of Willful Failure to Pay Child Support
- Cross-State Delinquency: An individual moves to another state to avoid paying child support while their child remains in North Dakota.
- Hidden Income: A parent works off-the-books to avoid paying court-ordered child support.
- Large Arrearages: A parent accumulates more than six months of unpaid child support, reaching felony-level amounts.
- Ignoring Court Orders: Despite multiple warnings, an individual refuses to make any payments toward their obligation.
- Fraudulent Claims of Disability: A parent falsely claims disability to evade their child support obligations.
Defenses Against Willful Failure to Pay Child Support Charges
If you are accused of this offense, several defenses may apply based on your circumstances:
Affirmative Defense of Disability
If you were genuinely unable to work due to a disabling condition and had no other means to pay child support, you may assert this as a defense. However, this requires substantial evidence.
Lack of Willfulness
The prosecution must prove you intentionally failed to pay child support. Demonstrating good-faith efforts to comply, such as partial payments or seeking payment arrangements, can counter this element.
Mistaken Identity
Errors in enforcement records can lead to incorrect accusations. If you are not the individual responsible for the delinquency, this can be a strong defense.
Miscalculation of Arrears
If the alleged unpaid amount is incorrect due to accounting errors or misunderstandings, this can be challenged in court.
Procedural Violations
Improper notice or failure to follow legal procedures during the enforcement process may lead to dismissal of charges.
How a Lawyer Can Help
A skilled lawyer is essential for navigating the complexities of child support enforcement cases. They can:
- Analyze Records: Review financial and legal documents to identify errors or inconsistencies.
- Build a Defense: Develop a strategy tailored to your unique situation.
- Negotiate with Agencies: Work with child support enforcement to resolve disputes or create payment plans.
- Represent in Court: Provide advocacy during hearings and trials.
- Protect Your Rights: Ensure due process and fair treatment throughout the legal process.
Frequently Asked Questions About Willful Failure to Pay Child Support
What qualifies as willful failure to pay child support?
Willful failure occurs when an individual intentionally disregards their court-ordered child support obligation without valid justification.
How is the unpaid amount calculated?
The amount is based on court records and enforcement agency calculations. Errors can be challenged through legal representation.
Can I face criminal charges for nonpayment of child support?
Yes. Depending on the amount owed, nonpayment can result in misdemeanor or felony charges.
What if I cannot afford to pay child support?
You should seek a court modification of your support order rather than stop payments. A lawyer can assist with this process.
Can I be charged if I live in another state?
Yes. If the child resides in North Dakota, the offense is considered committed in North Dakota regardless of your location.
What are the penalties for a class C felony conviction?
Penalties include up to 5 years in prison, fines up to $10,000, and mandatory restitution.
Can I avoid jail time by paying arrears?
In some cases, resolving the arrears before sentencing may result in reduced penalties or dismissal of charges.
What is the affirmative defense of disability?
This defense applies if you were unable to work due to a disability and had no other means to pay child support. Documentation is required.
What should I do if I am falsely accused?
Consult a lawyer immediately to gather evidence, correct records, and present a strong defense.
Can child support nonpayment affect my credit?
Yes. Delinquent child support can be reported to credit bureaus, impacting your credit score.
How can I modify a child support order?
You must file a petition in court to request a modification based on changes in income or circumstances.
Can back child support be forgiven?
Generally, arrears cannot be forgiven, but enforcement agencies may negotiate payment plans to resolve the debt.
Is jail time mandatory for nonpayment?
Not always. Judges have discretion to impose alternative penalties, such as probation or community service.
What happens if my license is suspended due to nonpayment?
You may petition the court for a reinstatement plan contingent on meeting payment obligations.
How can a lawyer help with child support cases?
A lawyer can provide legal advice, negotiate settlements, and represent you in court to protect your rights and interests.
Can enforcement actions be challenged?
Yes. If enforcement agencies act improperly or fail to follow legal procedures, their actions can be contested in court.
What if I lose my job?
You should file for a modification of your child support order immediately to reflect your new financial situation.
How long can I be held accountable for child support arrears?
Child support arrears are enforceable indefinitely in most cases until fully paid.
Why is nonpayment of child support a criminal offense?
Nonpayment undermines the welfare of children and violates court orders, prompting criminal penalties to enforce compliance.
What are my options if I cannot pay child support?
You should consult a lawyer to explore options such as modification, negotiation, or structured payment plans to address the issue.