The answer is yes. But before we get into the details, let’s make this a bit more user-friendly by giving our hypothetical parties some human names, instead of calling them payor/payee or obligor/obligee. Let’s use Jack for the person who owes the support obligation, and Jill for the person who receives the support. So Jack owes support to Jill. Moving on.

Jill definitely can seize Jack’s tax when he is behind on child or spousal support payments. But how? Does she have to take some sort of action? The answer is: it depends. In certain situations, Jill has to take action; in others, the seizure occurs automatically. It depends on 1) whether the obligation is child support, spousal support, or both; and 2) whether the support payment is “enforced” (which means a government agency assists with collecting support payments from Jack and distributing them to Jill – usually by setting up automatic withholding with Jack’s employer). This is how it breaks down:

Enforced Child Support

Process: Jill doesn’t need to do anything. Jack’s tax refunds will be automatically withheld and sent to her.

Explanation: When child support is court-ordered, Jill would probably apply for “Income Withholding Services” so that child support is taken from Jack’s paycheck each pay period and sent to Jill. Jill can accomplish this by contacting the county in which Jack resides, or by applying with the Minnesota Department of Human Services. If her application is approved, the child support payments are “enforced,” and the government keeps track of Jack’s payments. If Jack falls behind on child support, a government agency notifies both the Minnesota Department of Revenue and the IRS, who then withhold state and federal tax refunds from Jack and send them to, you guessed it: Jill.

Unenforced Child Support

Process: Jill must “petition” for tax refund seizure; it’s not automatic.

Explanation: If Jack and Jill privately arrange payment of child support, tax refunds are not automatically withheld. Instead, Jill has to file a tax-seizure petition at the courthouse, obtain a court order, and send the order to state and federal tax agencies. For more information, read “If payment of child or spousal support is arranged privately, can a tax refund be seized?” below.

Spousal Support

Process: Jill must “petition” for tax refund seizure; it’s not automatic.

Explanation; The government does not “enforce” obligations if they are solely for spousal support, and therefore, Jack’s tax refunds are not automatically withheld and sent to Jill. Instead, Jill has to petition. For more information, read “If payment of child or spousal support is arranged privately, can a tax refund be seized?” below.

Spousal Support & Child Support

Process: Jack’s tax refund is automatically withheld only when the child support is enforced.

Explanation: If Jill receives both spousal support and child support from Jack, she can apply for government enforcement in the same manner as when Jill receives child support alone (See the explanation following “Child Support Enforced by a County Program” above). The great thing for Jill in this situation is that amounts of both child and spousal support are automatically withheld from Jack’s tax refund. However, if there is no “enforcement” (Jack and Jill arrange child support privately), tax refunds will not be automatically withheld for child or spousal support delinquencies. One more caveat: tax refund withholding is only automatic when one person pays both types of support to one other person; the result changes when Jill receives only child support from Jack and only spousal support from Roger, or when Jack pays only child support to Jill and only spousal support to Wendy.

If Payment Of Child Or Spousal Support Is Arranged Privately, Can A Tax Refund Be Seized?

Yes. Jill can petition to have delinquent amounts of a child or spousal support withheld from Jack’s tax refund. Authority for this kind of action is found here. The process is as follows: Jill drafts a petition requesting a court order for tax refund seizure and files it with the court which originally ordered the obligation. Next, the court sets a date for a hearing on the petition and sends notices directing both parties to appear, offer evidence, and make arguments. For help filing a petition and appearing in court, or for assistance defending against a petition, contact our attorneys.

If the court determines that Jack hasn’t been making support payments, it will issue an order directing the Commissioner of the Department of Revenue to withhold the delinquent amount from Jack’s tax refund send it to Jill.

How Much Can Be Seized?

Jill can seize the entire amount owed to her by Jack, including attorney fees and other related costs. The order stays in place until the amount owed is paid in full; however long it takes. When fully paid, the Jack and/or Jill should inform the court, which will issue a new order directing the Commissioner to stop withholding money from Jack.

What If The Jack Files His Taxes Jointly With Another Person?

Jill can still collect from Jack, even if Jack files jointly with another person. Say Jack is married to Wendy, and the two file jointly, but Jack owes support to Jill. The Minnesota Department of Revenue will simply determine which portion of Jack and Wendy’s refund is attributable to Jack and deduct the amount owed from that portion. Example: if Jack’s income is $60,000, Wendy’s is $40,000 and the tax refund is $5,000, then Jack’s portion of the refund is 60% ($60,000 is 60% of $100,000), and his portion of the tax refund is $3,000 (60% of $5,000), which is the amount Jill can seize.

What Else Can Jill Do When Jack Isn’t Paying Support, Besides Seizing His Tax Refund?

Jill has other enforcement options, including:

1. Filing a motion for contempt of court. If successful, the court can impose penalties (fines or community service), order wage garnishment, or impose a jail sentence (which Jack must serve unless he pays the delinquent amount).
2. Seeking a civil judgment against Jack, which creates a lien against any of Jack’s real property located in the county in which the judgment is docketed. Jill won’t be able to collect right away, she will have to wait until the property is sold, and then the lien will attach to any proceeds.
3. Putting pressure on Jack by seeking suspension of his driver’s license or recreational license.
4. Requesting that a county prosecutor a) seek an order requiring Jack to seek employment, or b) pursue criminal charges.
5. Requesting that the federal government revoke, restrict, or limit Jack’s passport, or refuse to issue one to him altogether.

If you have questions regarding the topic of this article, or for assistance with child support, spousal maintenance, or other family law issues, please call our Family Law Team at 701-297-2890.

The information contained in this article and on this website is for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain advice with respect to your particular set of facts.

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