Debtors prisons are illegal in Michigan, but that does not stop some support recipients and courts from threatening incarceration if a payor does not pay-up.
The moving party needs to prove that (1) a support order exists, (2) the payor had notice of entry of the order, and (3) an arrearage exists.[1] The family court may find the payor in contempt if the court finds that the payor is in arrears and that (1) the payor has the capacity to pay all or some of the amount due through the exercise of diligence, MCL 552.635(1)(a); (2) the payor has failed to obtain a source of income and has failed to participate in a work activity after referral by the Friend of the Court, MCL 552.635(1)(b); or (3) the payor has the capacity to pay out of currently available resources, MCL 552.633(1).
If the claim is that the payor has currently available resources, the court may presume, in the absence of proofs to the contrary, that the payor has currently available resources equal to four weeks of payments. It may not find the payor has more than four weeks of payments without proof of those resources by the Friend of the Court or the recipient.[2]
Among the factors that may be considered in determining the ability to pay are the following:
employment history
education and skills
work opportunities
attempts to find work
the payor’s personal history, including marital status and means of support
real and personal assets and any transfer of assets to another
efforts to modify the decree if it is considered excessive under the circumstances
health and physical ability for gainful employment
availability for work
the payor’s location since the judgment and reasons for moving, if applicable[3]
If the payor is found in contempt because he or she has the capacity to pay out of available resources, the court may enter an order to do one or more of the following:
commit the payor to the county jail or an alternative to jail or other penal or correctional facility
commit the payor to the county jail or an alternative to jail with work-release provisions
condition a suspension of a driver’s license, an occupational license, a recreational or sporting license, or any combination of these licenses on noncompliance with an order for a scheduled payment of the arrearage
order the payor to participate in a work activity
order the payor to participate in a community corrections program if available within the court’s jurisdiction
order the payor to pay a fine of not more than $100
place the payor under the Friend of the Court’s supervision for a term fixed by the court with reasonable conditions, including requiring the payor to participate in a parenting program or a work program; to participate in drug, alcohol, or other counseling; to seek employment; to continue compliance with a current support or parenting time order; or to enter into and comply with an arrearage payment plan[4]
[1] Sword v Sword, 399 Mich 367; 249 NW2d 88 (1976).
[2] MCL 552.633.
[3] See Sword, 399 Mich at 378–379. (These considerations are also used in income imputation. Rohloff v Rohloff, 161 Mich App 766; 411 NW2d 484 (1987).)
[4] MCL 552.633(1).