Is Failure to Pay Child Support a Crime?
The Legislative 2021 UPDATE
What is Utah’s Criminal NonSupport?
You are guilty of failing to pay child support if you knowingly owe child support to a child under 18 years old who is:
(a) is in needy circumstances; or
(b) would be in needy circumstances but for support received from a source other than you or paid on the your behalf.
Criminal NonSupport in Utah is a Class A Misdemeanor. It is a third degree Felony if you have previously been convicted of criminal nonsupport or you have a total child support arrearage of $10,000 or more during certain periods.
What are the Penalties for a Criminal NonSupport? Can I go to Jail or Prison for Failing to Pay Child Support? Yes.
Class A Misdemeanor.
–Up to one year in jail. Prison time is not possible.
–Up to $2,500 fine.
–Appropriate court probationary terms or private supervised probation.
–Pretrial diversionary, or stayed proceedings agreements.
Third Degree Felony.
–0-5 years in the Utah State Prison. Jail, prison, probation or a combination of these three.
–Fine.
–Probationary period. Either court probation or supervised through Adult Probation & Parole.
–Pretrial diversionary, or stayed proceedings agreements.
Defenses to Utah’s Criminal Back Child Support Charges?
It is an affirmative defense that the defendant is unable to provide support. Voluntary unemployment or underemployment by the defendant does not give rise to that defense.
Example Voluntary Unemployment. Voluntary underemployment or unemployment is where you intentionally quit your job to avoid paying child support. Another example is where you are a trained dentist with a thriving practice, but take another job working at a grocery store.
NOTICE. You must give notice to the prosecuting attorney in advance of trial of the witnesses and facts you intend on using to show that you can’t find work.
Diversion “Stays” of Criminal NonSupport Charges.
Although not specifically a statutory diversion agreement, you can defer the trial of your failure to pay child support if you enter into an agreement to pay for a probationary period.
Basically, the court stays your court proceedings and allows you to comply with a reasonable child support order. If you don’t comply, then the court proceeds with the case, or enters the conviction against you.
See what a Diversion Agreement is HERE. https://provocriminaldefense.com/first-time-offenders-provo/
See how a Plea in Abeyance differs and what that is HERE. https://www.provolawyers.com/practice-areas/criminal-law/utah-criminal-pleas-in-abeyance/
CAN I LOSE MY HUNTING AND FISHING LICENSE IN UTAH? Yes. HOW ABOUT MY DRIVER’S LICENSE?
See this article for more details on losing your hunting and fishing license due to back child support. https://provocriminaldefense.com/2020/07/26/can-i-lose-my-utah-hunting-fishing-license-for-failing-to-pay-child-support/#:~:text=Not%20only%20is%20failure%20to,in%20Back%20Child%20Support%20Threshold.
YOU CAN READ THE ENTIRE NEW STATUTE HERE:
Effective 5/12/2020
76-7-201. Criminal nonsupport.
(1) A person commits criminal nonsupport if, having a spouse, a child, or children under the age of 18 years, the person knowingly fails to provide for the support of a spouse, child, or children when any one of them:
(a) is in needy circumstances; or
(b) would be in needy circumstances but for support received from a source other than the defendant or paid on the defendant’s behalf.
(2) Except as provided in Subsection (3), criminal nonsupport is a class A misdemeanor.
(3) Criminal nonsupport is a felony of the third degree if the defendant:
(a) has been convicted one or more times of nonsupport, whether in this state, any other state, or any court of the United States;
(b) committed the offense while residing outside of Utah; or
(c) commits the crime of nonsupport in each of 18 individual months within any 24-month period, or the total arrearage is in excess of $10,000.
(4) For purposes of this section “child” includes a child born out of wedlock whose paternity has been admitted by the defendant or has been established in a civil suit.
(5)
(a) In a prosecution for criminal nonsupport under this section, it is an affirmative defense that the defendant is unable to provide support. Voluntary unemployment or underemployment by the defendant does not give rise to that defense.
(b) Not less than 20 days before trial the defendant shall file and serve on the prosecuting attorney a notice, in writing, of the defendant’s intention to claim the affirmative defense of inability to provide support. The notice shall specifically identify the factual basis for the defense and the names and addresses of the witnesses who the defendant proposes to examine in order to establish the defense.
(c) Not more than 10 days after receipt of the notice described in Subsection (5)(b), or at such other time as the court may direct, the prosecuting attorney shall file and serve the defendant with a notice containing the names and addresses of the witnesses who the state proposes to examine in order to contradict or rebut the defendant’s claim.
(d) Failure to comply with the requirements of Subsection (5)(b) or (5)(c) entitles the opposing party to a continuance to allow for preparation. If the court finds that a party’s failure to comply is the result of bad faith, it may impose appropriate sanctions.
(6) Criminal nonsupport is a continuing offense.
Amended by Chapter 209, 2020 General Session
76-7-202. Orders for support in criminal nonsupport proceedings.
(1) In any proceeding under Section 76-7-201, the court may, instead of imposing the punishments otherwise prescribed, issue an order directing the defendant to periodically pay a sum to the Office of Recovery Services, or otherwise as the court may direct, to be used for the support of the dependents who are the subject of the proceeding under Section 76-7-201.
(2) The order to periodically pay a sum for the support of the dependents:
(a) may be issued with the consent of the defendant prior to trial, or after conviction, having regard to the circumstances, financial ability, and earning capacity of the defendant;
(b) shall be subject to change from time to time as circumstances may require;
(c) may not require payments for a period exceeding the term of probation provided for the offense with which the defendant is charged, or of which he is found guilty; and
(d) shall be conditioned upon the defendant either entering a recognizance in accordance with Subsection (3), or providing security in a sum as the court directs.
(3) The condition of recognizance shall require the defendant to:
(a) make personal appearance in court whenever ordered to do so within the period of probation; and
(b) comply with the terms of the order and any subsequent modifications of the order.
(4) If the court is satisfied by information and due proof under oath that at any time during the period of probation the defendant has violated the terms of the order, it may proceed with the trial of defendant under the original charge or sentence him under the original conviction or enforce the original sentence as the case may be. In the case of forfeiture of bail or bond in any proceeding under Section 76-7-201, the sum recovered may, in the discretion of the court, be paid in whole or in part to the Office of Recovery Services, or otherwise as the court may direct, to be used for the support of the dependents involved.
Amended by Chapter 289, 1995 General Session
2021 UTAH LEGISLATIVE UPDATE ON CRIMINAL NONSUPPORT
