Child Support Laws Question:
In the judgment terminating my child support payments, my ex-wife was ordered to pay for my “reasonable attorney fees” and a default order was entered “reserving” the issue of my child support overpayments.
What does “reserving” the issue of overpayment mean, and how do I prove the amount overpaid?
Also, what process do I go through to have those attorney costs reimbursed?
Answer:
This answer only includes general divorce help for men since I am only licensed to practice in Oklahoma and am thus unable to provide any financial advice on divorce on the laws in other states.
Without reviewing the court order it is difficult to say for certain what is and is not necessary; however, as I understand the fact pattern you provided it does appear that additional court appearances are necessary.
First, the court has “reserved” the issue of over payment. By reserving the issue it is my understanding that the court has not yet made a determination on whether there has been an overpayment and what amount, if any, has been overpaid.
You will need to have an evidentiary hearing on that issue. At such hearing you will need to present sufficient evidence (bank statements, copies of checks, etc.) showing what payments were made.
You will also need to present sufficient evidence to show how much should have been paid. At such time the court can enter an order as to the amount, if any, of overpayment that should be returned.
Based on the fact pattern you provided, the court has also found that you are entitled to reasonable attorney fees and costs, however the court has not yet established the actual amount.
You will need to have a hearing on the issue of attorney fees and cost (you could try to combine this hearing with the hearing on the overpayment, but the court, in its discretion, may not permit them to be held together).
At such hearing you will need to establish that the rate of your attorney (what he charged per hour), as well as the time and expense incurred were reasonable. Typically you will need another, impartial attorney, to testify to these facts unless the other party stipulates to them.
If you did not use an attorney, you will not be entitled to attorney fees. You will however be entitled to a reimbursement of your court expenses. At such time, the court will enter an order directing the opposing party to pay a specific amount of attorney fees and costs.
Finally, once you have the orders (typical called Journal Entries of Judgment), you must serve it on the opposing party or counsel. Once served you must wait 10 days (not including weekends and holidays) before you can attempt to collect.
Once the 10-day period has lapsed, you should file the Journal Entries with the County Clerk (not the Court Clerk). This will put the public on notice that you are owed money.
If you know the employer of the opposing party, you may attempt to garnish his/her wages. If the person is not employed you may want to have a Hearing on Assets, which would require the opposing party to appear in court and identify assets which could be used to satisfy the debt.
Please understand that my opinions are based upon the limited facts that you provided to me. For a more in depth discussion of fathers rights and legal advice on divorce, I urge you to contact a family law attorney
To set up an appointment with a Cordell & Cordell mens divorce attorney, including Brock Ellis, an Associate Attorney in the Oklahoma City, Oklahoma, office, please contact Cordell & Cordell.
