NONSUPPORT OF SPOUSE, FORMER SPOUSE OR CHILD

Nonsupport of a spouse, former spouse or child is, or failure to pay spousal or child support, is common charge, and is prevalent in movies and television shows. The penalties for failing to pay court ordered support can result in harsh penalties, including jail time and large fines.

What is the legal definition of Failure to pay spousal or child support?

Failure to pay spousal or child support is defined by a series of statutes, NRS 201.015, 201.020, 201.030, 201.051, 201.070, and 201.080.

NRS 201.015 – “Minor child” defined.

For the purposes of NRS 201.015 to 2001.080, inclusive, “minor child” means a person who has not reached the age of majority as provided in NRS 129.010 and has not been declared emancipated pursuant to NRS 129.080 to 129.140, inclusive.

NRS 201.020 – Penalties; jurisdiction.

  1. Except as otherwise provided in subsection 2, a person who knowingly fails to provide for the support of his or her:
    1. Spouse or former spouse;
    2. Minor child; or
    3. Child who upon arriving at the age of majority is unable to provide for himself or herself because of infirmity, incompetency or other legal disability that was contracted before the child reached the age of majority,
  • as ordered by a court, is guilty of a misdemeanor.
  1. A person who violates the provisions of subsection 1 is guilty of a category C felony and shall be punished as provided in NRS 193.130 if:
    1. The person’s arrearages for nonpayment of the child support of spousal support ordered by a court total $10,000 or more and have accrued over any period since the date that a court first ordered the defendant to provide for such support; or
    2. It is a second or subsequent violation of subsection 1 or an offense committed in another jurisdiction that, if committed in this State, would be a violation of subsection 1, and the person’s arrearages for nonpayment of the child support or spousal support ordered by a court total $5,000 or more and have accrued over an period since the date that a court first ordered the defendant to provide for such support.
  2. A prosecution for a violation of subsection 1 may be brought in a court of competent jurisdiction in any county which:
    1. A court has issued a valid order for the defendant to pay child support or spousal support;
    2. The defendant resides;
    3. The custodial parent or custodian of the child for whom the defendant owed child support resides;
    4. The spouse or former spouse to whom the defendant owes spousal support resides; or
    5. The child for whom the defendant owes child support resides.

NRS 201.030 – Institution of proceedings; Verified complaint.

Proceedings under NRS 201.015 to 201.080, inclusive, may be instituted upon complaint made under oath or affirmation by the spouse or child or children, or by any other person, including the district attorney, against any person guilty of an offense named in NRS 201.020.

NRS 201.051 – Affirmative defense: Notice of intent to claim; notice of rebuttal witnesses; notice of provisions of section.

  1. Except as otherwise provided in this section, in a prosecution for a violation of NRS 201.020, the defendant may claim as an affirmative defense that he or she was unable to provide the child support or spousal support ordered by a court.
  2. In addition to the written notice required by NRS 174.234, a defendant who intends to offer the affirmative defense described in subsection 1 shall, not less than 20 days before trial or at such other time as the court directs, file and serve upon the prosecuting attorney a written notice of his or her intent to claim the affirmative defense. The written notice must include:
    1. The specific affirmative defense that the defendant is asserting; and
    2. The name and last known address of each witness by whom the defendant proposes to establish the affirmative defense;
  3. Not later than 10 days after receiving the written notice set forth in subsection 2 or at such other time as the court directs, the prosecuting attorney shall file and serve upon the defendant a written notice that includes the name and last known address of each witness the prosecuting attorney proposes to offer in rebuttal at trial to discredit the affirmative defense claimed by the defendant.
  4. Each party has a continuing duty to file and serve upon the opposing party any change in the last known address of any witness that the party proposes to offer to establish or discredit the affirmative defense described in subsection 1.
  5. Each party has a continuing duty to disclose promptly the names and last known addresses of any additional witnesses which come to the attention of that party and which that party proposes to offer to establish or discredit the affirmative defense described in subsection 1.
  6. If the defendant or prosecuting attorney fails to comply with the requirement s set forth in this section, in addition to any sanctions or protective orders otherwise provided in chapter 174 of NRS, the court may grant a continuance to permit the opposing party to prepare.
  7. A prosecuting attorney shall provide notice of the requirements of this section to a defendant when a complaint is served upon the defendant for a violation of NRS 201.020.
  8. For the purposes of this section, a defendant is not “unable to provide the child support or spousal support ordered by a court” if, during the period that the defendant was obligated to provide and failed to provide child support or spousal support, the defendant was:
    1. Voluntarily unemployed or underemployed without good cause or to avoid payment of child support or spousal support, including, without limitation, not using reasonable diligence to secure sufficient employment; or
    2. Unable to pay the child support or spousal support ordered by a court because of excessive spending, indebtedness or other legal obligation, unless the spending, indebtedness or other legal obligation was not within the control of the defendant.

NRS 201.070 – Evidence; husband and wife competent witnesses.

  1. No other or greater evidence is required to prove the marriage of the husband and wife, or that the defendant is the father or mother of the child or children, than is required to prove such facts in a civil action.
  2. In no prosecution under NRS 201.015 to 201.080, inclusive, does any existing statute or rule of law prohibiting the disclosure of confidential communications between husband and wife apply, and both husband and wife are competent witnesses to testify against each other to any and all relevant matters, including the fact of the marriage and the parentage of any child or children, but neither may be compelled to give evidence incriminating himself or herself.
  3. Proof of the failure of the defendant to provide for the support of the spouse, child or children, is prima facie evidence that such failure was knowing.

NRS 201.080 – Uniformity of interpretation.

NRS 201.015 to 201.080, inclusive, shall be so interpreted and construed as to effectuate their general purpose to make uniform he law of those states which enact them.

It’s a crime to not pay spousal or child support?

Yes, not paying Court Ordered support is a crime in Nevada. However, there are a few elements that are required to be met before someone can be charged with Failure to Pay Support.

What are those elements?

There aren’t too many, and they are fairly obvious.

  • Court Ordered Support – Obviously, you must have been ordered by the court to pay either Spousal support, Support for a minor child, or Support for an adult child who is sick, disabled, or incompetent to take care for or support themselves.
  • Knowing failure to pay – This does not mean the accused knew that they were supposed to pay the support and didn’t. So long as the court orders the support, it will be presumed that the nonpayment was “intentional.”

What if you aren’t able to pay the support?

If you legitimately are unable to pay court ordered support, then the Court is unlikely to convict you of failure to pay. However, the prosecutor will try to show the court that your inability to pay is due to one of two things:

  • Your income is intentionally lower than it should be.
    • If you are unemployed, the prosecutor will try to show that you are unemployed by choice, and that you would be employed if you put in the effort.
    • If you are employed, the prosecutor may try to show that you are staying at a low paying job with the intention of avoiding the payment on your Court Ordered support.
  • You are unable to pay because of excessive spending, or other debts or legal obligations to pay.

In order for a conviction, the prosecutor must be able to show, beyond a reasonable doubt, that your inability to pay support is a result of your actions or inaction relating to finding, securing, and progressing in a job or career,

What are the possible penalties?

The possible penalties for “failure to pay Court Ordered support” is dependent on the amount of money that has been intentionally not paid (known as the amount of “arrears”). It is also dependent on whether you have a previous conviction for “failure to pay Court Ordered Support”

  • If you owe less than $10,000, then you will be charged with a misdemeanor, and will be facing:
    • Up to 6 months in jail; and/or
    • Possible fines up to $1,000.
  • If you owe $10,000 or more, then you will be charged with a category C felony, and will be facing:
    • Between 1 and 5 years in a Nevada State Prison; and
    • Possible fines up to $10,000.

If you have been previously convicted of “failure to pay Court Ordered support,” then any subsequent charge will depend on whether you owe $5,000 or less.

  • If your second, or subsequent charge is for owing less than $5,000, then you will be charged with a misdemeanor, and will be facing:
    • Up to 6 months in jail; and/or
    • Possible fines up to $1,000.
  • If your second, or subsequent charge is for owing $5,000 or more, then you will be charged with a Category C felony, and will be facing:
    • Between 1 and 5 years in a Nevada State Prison; and
    • Possible fines up to $10,000.

Failure to pay Court Ordered support can also have drastic consequences on child custody. Even though child custody matters are handled by the family court while failure to pay support is a criminal matter, the family court will consider any criminal charges against both parents when determining child custody.

Are there any Defenses?

Yes, of course there are. However, defenses to “failure to pay court ordered support” all revolve around your reasons for being unable to pay it.

  • Unable to find work – Inability to obtain a job is only a defense if you can show that you were actively and diligently attempting to secure employment. So long as you were actively in the process of trying to obtain employment, then the charges against you should be dropped or dismissed.
  • Ill or incapacitated – Being physically incapable of working, either because of illness or other incapacity, is a defense to nonpayment. If you can prove that you were physically unable to work, then the charges against you should be dropped or dismissed.
  • Legal obligations – If you have legal obligations that make it impossible to pay court ordered support, then you may have a defense to nonpayment. However, generally speaking, the only legal reason that the Court will likely accept is that you were incarcerated at the time and did not have adequate funds to cover the required payment.

What should I do if I’ve been charged with “Failure to Pay Court Ordered Support?

As with any crime, it is very important that you speak with an experienced criminal defense attorney as soon as possible so that you can discuss the specific circumstances as well as any defenses that may apply to your case.

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