Question: I currently owe back child support and have been current on payments for four years while a portion of it goes to arrears. I have since married a British woman who moved back to Britain for a job.
When I applied for a passport to go join her, I was told I was on a denial list by the child support agency apparently because of the back support owed.
Can they refuse me a passport to be with my wife because of this? Would this be considered a hardship exception?
Yes, by federal law and federal regulation, the United States may deny or revoke passports to applicants who have arrears of child support of more than $5,000, except for a limited passport to return to the United States. See, e.g., 42 USC 652 and 22 CFR 51.70. Payors with at least $5,000 arrears appear on a list in the Passport Name Check System. However, the Secretary of Health and Human Services must certify the arrears. When the arrears are paid or do not exceed $5,000, the Secretary sends a subsequent certification to remove the payor from the list.
Usually, hardship exceptions only apply when the applicant’s life or safety is in jeopardy, or a passport denial is against the fundamental public policy of the United States (this is a vague standard); just wanting to be with a loved one in another country and/or to work is usually not enough.
So, what can a support payor who cannot obtain a passport do? Here are some suggestions:
Motion to Reduce Child Support: If you cannot pay the current amount, consider filing a motion to reduce it. This might be a motion to argue just before your trial. Be on the offense, not the defense. The standards and procedural requirements vary by state, but, in general, parents who genuinely cannot afford to pay (e.g., have lost a job) will receive a reduced amount or a long-term payment plan. You may even request to have your arrears reduced or discharged. Be sure to request that the court enter an order clearly stating how much in arrears (below $5,000) you owe, and be sure to send that order to the appropriate person at the Secretary for a new certification to remove your name from the Passport Name Check System. Contact an attorney in your area for information about the rules applicable to you.
Three Year Support Review: The 1996 PRWORA requires states receiving federal assistance to review child support orders every three years. In Michigan, where I practice, support payors and payees have a “one time pass” every three years to ask the Friend of the Court to review their current child support order. All they need to do is send a letter to the Friend of the Court to request it. Contact the court or child support administrator for your case to find out how your jurisdiction conducts PRWORA reviews Be cautious, however, because incremental differences may not be enough to modify the current order (in Michigan, we need at least 15% deviation), and you could end up paying more support if your ex-spouse’s income has deceased more than yours.
Pay the Right Person: Most states require payors to pay support through the state, along with a processing fee. Some parents pay their children’s custodial parent directly to avoid paying the fee. That is a mistake. Unless and until your order states that you can pay your ex directly, you must pay child support through the state. In most states, the money you pay directly to the other parent will be treated as a “gift,” not child support. Since the appropriate entity (the state) did not receive the money, you would still owe child support. You could even end up paying the full amount twice.
Have a frank settlement discussion. Explain your financial predicament to your ex, sincerely and in depth. Ask for a settlement at an amount you can afford to pay, and explain that any other higher amount will force you into bankruptcy (if true). Support obligations are non-dischargeable in bankruptcy, and your ex may be left with a bankrupt payor who is not paying anything at all if you do not settle at a reasonable amount. Be sure to reduce any settlement to a written order, with the court’s approval and abiding all court rules and statutes for entering settlement agreements.
Keep in mind that I am a Michigan attorney and cannot give you detailed advice about the laws in your state, Minnesota. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately for additional information and legal representation. Thank you for submitting a question to Cordell & Cordell, P.C.
Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.