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Immigration status and child support can be very complex issues to deal with. No matter your immigration status or your partner’s status, the child or children involved are still entitled to receive financial support. Immigration status does not have an impact on paying child support. You will still be expected to pay regardless of your status. While Wisconsin does not have any specific laws directly relating to the documented status of the parent either requesting or paying child support, the fact that one parent can leave or be deported from the United States does create difficulty when dealing with child support issues.  


One problematic example would be if you had a child with an undocumented immigrant, and they left the country and returned to their home. You might have a court order in Wisconsin that states they must pay child support, but enforcement of the order would be complex. On the other hand, if you are undocumented and there is a court order ordering you to pay child support, but you do not, it could present problems when you cannot or do not pay the monthly child support. It is always a good choice to consult with an experienced child support attorney. In this particular situation, it is also an excellent choice to consult with an experienced immigration lawyer. Read on to learn more about what happens to non-citizens who do not pay child support in Wisconsin.  


Couple calculating child support

How Wisconsin Courts Determine Child Support


Being undocumented or a non-citizen does not bar a parent from asking the court for child support or being ordered by the court to pay child support. Immigration status does not play a role in determining the child’s best interests. The court will consider your income, stability, and ability to care for the child or children when making decisions about the child or children involved. Wisconsin courts use the best interests of the child standard for determining support and custody orders, not immigration status.  


When two parents separate or divorce in Wisconsin, the court uses a statutory formula to issue an order on what the non-custodial parent must pay each month in child support. The court will look at the number of children and the paying party’s net monthly income to determine how much child support is necessary. If the parties have shared custody (50/50), then the court will also look at the net income of both parties and adjust accordingly. Based on the number of children, a percentage is applied. In order to ensure that payments are appropriately made on time and in the correct amount, the payments go through a state system to ensure accuracy and timeliness.  


Do not pay child support to your former partner in cash or make informal arrangements that the court is not involved in. A lack of accuracy in record-keeping or amount could put you at risk of being found in arrears, even though your former partner told you it was ok at this time. Keep the court involved, even if you have concerns about your immigration status.  


In order to make the financial determinations, the court will utilize the financial disclosure documents filed with the court by each party. The documents ask about your place of residence, your employment, and your monthly income and expenses. The financial disclosure statement also asks how many members are in your household.  


There are no questions about the paying party’s immigration or documented status included in the financial disclosure documents. A vital issue to note here is that deliberate failure to provide complete financial information is a crime, which could be a future factor. Lying to the court about your finances puts you at risk of being sent to jail, which would bring you and your immigration status to the attention of US Immigration and Customs Enforcement or ICE.  


Chess piece or representation of family

Can A Non-citizen Go To Jail For Not Paying Child Support?


If you do not pay court-ordered child support, you will be summoned into court to explain why. It is essential to be frank with the court about your ability to pay and any circumstances affecting your ability to pay, like employment. Usually, the court gives several chances for you to pay current and back child support. If you continue not to pay child support and refuse to work with the other parent and the state child support agency, the court may find you contemptuous.  


If the court issues an order for you to do something, like pay child support every month, and you do not do it, you are in contempt of a court order. The court may, at its discretion, either choose to create a plan for you to pay them back owed child support in addition to your regular monthly responsibility or if it is a continuing issue, order you to serve jail time as a punitive measure for not obeying the court order. In Wisconsin, the child support agency or non-paying parent could file paperwork with the local district attorney for criminal non-payment of child support.  


The court does not like to send a parent to jail in child support cases because the parent is not earning a living to help care for the child’s financial needs. Still, the court will do it if the circumstances are egregious enough.  


The short answer here is yes; even if you are a non-citizen, you can be sentenced to jail or prison time here in the United States. Non-citizen status does not protect you from being sentenced to time in jail.  

Parent and child holding hands

Can A Non-citizen Be Deported For Not Paying Child Support?


If you do not have a green card and are incarcerated for non-payment of child support, it will enter you into the criminal justice system. Once you are entered into the system, you could end up being detained and deported due to your lack of status in the United States. If you are pursuing citizenship, the failure to pay child support will count against you when you attempt to become a citizen of the United States or fight deportation. The issue boils down to what the courts refer to as good moral character.  


Suppose you have unpaid child support in the United States (or another country). In that case, it will work against you when the issue of citizenship is at stake. The United States looks at a factor called good moral character as a part of the determination to approve citizenship. Supporting your dependents in any country is a part of good moral character. Suppose you are not paying the child support that will be a factor against you when attempting to remain in the United States. The factors and circumstances of each situation will play a large part in a citizenship determination where the good moral character is at issue, so it’s crucial to stay on top of paying your child support and not letting it become a long-term problem.  


Your immigration status affects many areas of your life. If you break the law in the United States while your status is still undetermined, it can seriously affect your chances of changing your status down the road. If you are a non-citizen who is not paying child support, a record of that will go against you when you attempt to change your status or fight deportation based on the questionnaire you complete when requesting naturalization. If you fail or are failing to pay for your dependents, you run a severe risk of not having your application approved.  


You should consult with an experienced family and immigration law attorney before allowing any child support obligation to go unpaid. Not only do you face significant financial penalties for unpaid child support, which can include jail time if the situation is difficult enough, but it can substantially affect your chances of changing your immigration status in the future. Furthermore, there is always the possibility that the non-paying parent could attempt to use your immigration status against you in any custody or support litigation, which is usually contentious because it deals with financial issues.  


If you are experiencing problems with child support and are a non-citizen, you should consult with an experienced immigration and family law attorney as soon as possible. Do not wait until the problem becomes worse. The team at O’Flaherty Law is experienced in both family and immigration law and would be happy to help you.  

May 23, 2020
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