Also known as:wherewithal-to-pay · ability to pay · financial capacity
Written by attorneys · grounded in primary & secondary sources — see below
The liquid financial resources a person possesses at the time a legal obligation such as child support becomes due. Courts must determine the existence of this capacity before imposing contempt sanctions for nonpayment.
Sources & Authorities· 3 primary sources
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Cases
Hornbooks
How it applies
Common Examples
2
Civil Contempt Finding on Ability to Pay
Wilma Wright faces a civil contempt hearing after missing several child support payments. The court gives her notice that her ability to pay will be decisive, allows her to present evidence of irregular freelance income and heavy equipment loans, and makes an express finding that she currently lacks sufficient liquid resources. Because these procedural safeguards are in place and the opposing parent is unrepresented, the court proceeds without appointing counsel and orders a payment plan rather than incarceration.
Criminal Contempt Proof Requirement
Winston Ward is prosecuted for criminal contempt after failing to meet a child support order. The state presents no evidence of his current bank balances or employment status and instead asks the court to assume he had the funds because payments were ordered in the past. The court refuses the presumption, requires the prosecution to prove beyond a reasonable doubt that Winston possessed the wherewithal to pay at the time of each missed installment, and acquits him when that element is not established.
Common questions
Frequently Asked
4
In a civil contempt proceeding for unpaid child support, when does due process require appointment of counsel for an indigent obligor?+
Due process does not automatically require counsel when the opposing parent is unrepresented and the state supplies alternative safeguards. Those safeguards include clear notice that ability to pay is at issue, a fair chance to present and contest financial evidence, and an express judicial finding on the obligor's wherewithal to pay.
Supporting sources
In a criminal contempt case for failure to pay child support, may the state presume the defendant had the ability to pay?+
No. Ability to comply is an element of the offense that the prosecution must prove beyond a reasonable doubt. The state cannot shift the burden by presuming the defendant possessed the wherewithal to pay merely because a support order exists.
Supporting sources
How does a court weigh a parent's irregular cash flow and equipment loans when setting child support?+
The court must consider the noncustodial parent's actual financial resources and constraints under the statutory factors. Heavy equipment loans and seasonal cash flow problems justify moderating the support amount to a level the parent can realistically meet without undue hardship, but they do not eliminate the obligation entirely.
Supporting sources
Does a state statute that automatically denies a marriage license to anyone in child support arrears survive constitutional challenge?+
No. Because the statute significantly interferes with the fundamental right to marry, it triggers heightened scrutiny. The law is not narrowly tailored when it bars marriage for all arrearages regardless of current ability to pay or less restrictive collection tools such as wage garnishment.
Supporting sources
Family LawSeparation, divorce, dissolution, and annulment · Child supportUBEIntermediate