Question: I have been collecting Social Security disability for 2+ years as well as an additional payment for my 16-year-old daughter. I have never missed a child support payment.
I am back to work and based on Social Security rules, I will receive the payments for 9 more months. My ex has managed to have Social Security send the dependent checks to her and insists I still to pay child support in addition to the dependent payment, which is the same dollar values of child support.
Is she entitled to both?
Not necessarily. Your current child support order should state the actual dollar amount you owe; there is no “double dipping” (i.e., Social Security pays that amount, then you also pay that amount) unless ordered. This is because each parent’s child support obligation is based on the parent’s income and number of overnights with each child – if you do not have Social Security income, it should not be included. If your order is ambiguous, try the following – and act as soon as possible to avoid accruing child support arrears with interest or a contempt sanction from your court:
Motion to Reduce Child Support: If you cannot pay the amount, consider filing a motion to reduce it. 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. 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 and whether they can be used in lieu of or in addition to and as support for your trial. 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. If you would rather pay the parent directly, contact your attorney to learn what the local requirements are for opting out of the state payment system. Most states do allow you to opt out, but generally you cannot have arrears and both parents must agree and/or the court must determine a revised child support order is appropriate. In Michigan, for example, the payor and the payee must agree, the payor must have no arrears, and there must be no threats of domestic violence or signs of “strong-arm” bargaining between the parties before the court will consider an opt-out. When you are allowed to pay the other parent directly, if ever, be sure to make the payments by check so that you have a record of when you wrote the check and whether it cleared your checking account.
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 New York. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately if you need additional information or 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.