"Past due obligations" is any amount (A) determined under a court order or an order of an administrative process pursuant to the law of a State to be due from a person for the support and maintenance of a child or of a child and the parent with whom the child is living; and (B) that has remained unpaid for a period longer than one year, or is greater than $5,000. 18 U.S.C. § 228 (d)(1).
"Willfulness," according to the legislative history has the same meaning as it has for purposes of Federal criminal tax law. Thus, willfulness is the intentional violation of a known legal duty. Cheek v. United States, 498 U.S. 192, 111 S.Ct. 604, 610 (1991). H. Rep. No. 102-771, 102d Cong., 2d Sess. at 6.
With respect to ability to pay, the legislative history states:
the government must establish beyond a reasonable doubt, that at the time payment was due the [defendant] possessed sufficient funds to enable him to meet his obligation or that the lack of sufficient funds on such date was created by (or was the result of) a voluntary and intentional act without justification in view of all the financial circumstances of the [defendant].
H. Rep. No. 102-771, 102d Cong., 2d Sess. at 6.
Willfulness cannot be presumed from non-payment alone. The government is required to prove that the defendant, as of the date specified as the date of the offense, willfully failed to pay an outstanding amount.
Criminal culpability is not obviated by partial payment of support obligations because the statute defines past due support obligation as "any amount." However, partial payment may be relevant to inability to pay, which would negate willfulness. The circumstances of any case in which partial payment has been made, including the relationship of the amount of partial payment to the total arrearage and ability to pay the arrearage, should be considered before proceeding.
[cited in JM 9-74.100]