Ask a Divorce Lawyer: If a child support case is closed, can it be re-opened and possible arrears charged?

Question: Ten years ago, my husband and his ex-wife went to the attorney general’s child support division and signed notarized statements to close the child support case. The children had resided between the two homes over the last several years. Recently, both children decided to live with their mother, his ex, on a permanent basis. 

My husband’s ex then called the child support division and was able to re-open the case and obtain $33,000 in arrears against my husband.

Apparently, the child support division did not forward the statements to the courts. How do we fix this? Is there a way to fight this?

 

Answer:

If your husband and his ex-wife stipulated to close their child support file with the state support administrator and to waive any child support from each other, which their divorce court then approved, then, yes, you should be able to fight the arrears notice. It is very important to review the documents they signed at that time. Look for any language indicating that they waived support from each other and that their court approved the waiver. Otherwise, they likely agreed to take the support file out of the state system but not necessarily to waive support. The court needs to approve the waiver to suspend child support.

This is because child support is the child’s right, not the parents’ right. In other words, parents cannot waive support on their children’s behalf unless the court also approves the waiver.

Without having the complete file to review, and based on the limited information provided, I can only give you this general information. You should act promptly, perhaps by filing a motion with the court for an accounting (a court order stating what support, if any, your husband actually does owe). Attach copies of all of the court orders, the waivers, and any other documents you have or can obtain.

It is also possible the arrears notice is a simple mistake – with all of the support files the states handle, it is not uncommon to have errors.

Keep in mind that I am a Michigan attorney and cannot give you detailed advice about the laws in Texas. 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 representation. Cordell & Cordell has attorneys licensed and located in Texas if you wish to discuss your case with us.

 

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.

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