Ever feel like you cannot get out of the cycle of child support collection? You may have fallen behind and just got caught up – and then, wham!, you receive a notice for a tax refund intercept, a notice for a hearing to explain why you have an arrearage, an income withholding order that can take away up to 65% of your pay, a passport revocation letter, a boot on your car, leaving you stranded at home and unable to work, or a combination of these things.
For many parents, this a cycle that keeps on going, and going, and going, until their children are grown adults, living out of home and having children of their own. Child support collection becomes the task of a State worker with one goal in mind – to have you paying the State in interest and penalties, for years and even decades after your child support obligation terminates.
But is this fair? I mean, after all, your children are adults, and the State isn’t watching over them. So why should you pay the State anything? There are many good reasons, and a lot of bad ones. If your tax dollars go to support a child on food assistance, you should want the parent who is capable of supporting that child actually supporting that child. So, the State is owed something when he refuses. But, one can, and should, question why immobilizing a vehicle so a parent cannot get to work, to make money to pay support, is fair. One can, and should, question why adding penalties and interest to unpaid support, so that the total owed reaches an amount that makes him eligible for incarceration, is a good idea when the parent cannot pay the support in the first place. In the abstract, at least, because there are circumstances in which both are fair. We would not want a parent driving down to the casino to gamble away his paycheck when he could be feeding his kids.
However, that parent is not most parents. Most parents work hard to meet their child support obligations and even harder to pay-up when they fall behind. But to avoid that vicious cycle of interest, penalty, refund intercept, hearing, incarceration, and then back again, there is more that can, and should, be done:
Review and Modification – If your income is reduced, request a review or modification of child support as soon as possible. A “review” refers to an administrative adjustment of the support order without a hearing to determine whether there is a sufficient change in circumstances to warrant a support modification. For most states participating in the Title IV-D federal program, a parent may request this review once every three years. A “modification” refers to a change following a hearing at which you present evidence of a sufficient change and how the support obligation should also change. Be cautious, however, because the other parent’s income may have also changed – and you could end up owing more support. You should make your request as soon as practicable after your income changes because, in most states, you can only “back date” your support obligation and erase arrearages, absent the other parent’s agreement, to the date you filed your request.
parents(Correct) Direct Pay – Do not pay child support directly unless your support order allows you to do so. We cannot overstate this rule. In most states, any direct payments are conclusively treated as gifts, and you will still owe the support you paid directly. Even if you have proof of payment, and in many states even if the other parent acknowledges receiving the payment, you will still be treated as behind in the eyes of the state. For states that do collect receipts, you can expect to take a long time at the courthouse or the support agency to correct your account. That being said, if you and the other parent can get along, or if you can arrange for automatic deposits from your pay, you might consider revising your order to allow for direct payments, however. In many states, you pay an administrative fee to make payments through the state, and you can save yourself money by making them directly.
Nunc Pro Tunc Orders – If you notice a clerical error in your support order – for example, maybe the “2” in “$250 each month” became a “5” in the state’s order -contact the courthouse or support agency to request a nunc pro tunc order. These are orders “from the beginning,” and we use them to correct clerical errors so that the court’s order reflects the court’s and/or the parents’ intent at the time the order was issued. Any mistakes made while the incorrect order was in existence are automatically corrected. This means, that extra $300 each month in our example that went unpaid is automatically erased from the first date support was due. We avoid the problems with back-dating support orders for reviews and modification (see above) this way, provided you can point to a true clerical error and not your own error for not filing for a review or modification soon enough.
Abatement – If you regularly exercise more parenting time than your current order allows, you should consider requesting a modification of that order and/or an abatement of support while your children are under your case. This is because most support orders are based, in part, on the amount of time you spend with your children. You are supposed to support them when they are not with you, so if you are supporting them and they are with you, you are effectively paying twice. Many states require a significant change in the children’s lives to modify an order, so be sure you consult with an attorney before taking this action.
Arrears Discharge –If you have a forgiving ex, ask you ex to forgive some of the arrearages owed to her. In many states, parents can forgive all or a portion of support owed them directly for their child, even if the state cannot forgive the support owed to the state as reimbursement for government benefits. This may make it easier for you to work – without a huge support debt appearing on your credit report, for example. Some states are even suspending interest and penalty charges for parents who make good faith payments toward their support arrearages. It is worth looking into if your arrearage is insurmountable.
The worst thing you can do is keeping working with the expectation that, some day, you will be able to pay. Chances are, you won’t – or, if you do, you will pay more than you would have had you taken some of these steps.