ARREARS FORGIVENESS PROGRAM - DISCHARGE OF STATE OWED ARREARS

If you owe a child support arrearage to the State of Michigan, you may be eligible to have some or all of that arrearage discharged.  There are two options now available if you can demonstrate that you have an inability to pay all or part of the arrearage and that you have been active in your child/children’s lives:

  Arrears Reduction/Discharge Under Circumstances of Extreme Difficulty (Arrears REDUCED)

Arrears REDUCED provides for the full or partial discharge of state‐owed arrears after payer has demonstrated a circumstance of extreme difficulty.

 Lump‐Sum Payment

The Lump‐Sum Payment option provides for the discharge of some or all of payers state‐owed arrears in return for the payer’s payment of family‐ or state‐owed arrears. The Lump‐Sum Payment option may be used if a payer is not able to pay the entire arrearage but has the ability to pay a lump‐sum amount at one time. The payer may be eligible to receive a matching reduction in the state‐owed arrears up to the amount of the Lump Sum payment made on the family‐owed arrears or state‐owed arrears. The minimum Lump‐Sum payment is $1,000 or the amount of state‐owed arrears, whichever is less.

Here are some (not all) situations in which a payer may be eligible for a total or partial discharge of state‐owed arrears. They include:

1. The payer is in prison for life with no chance of parole.

2. The payer is incarcerated with an earliest release date of 10 or more years in the future, and his/her youngest child on the docket is at least 18 years old.

3. The payer is receiving SSI and has been determined to have a permanent impairment.

4. The payer now lives in the same household with the custodial parent and the child(ren), and this living arrangement will continue.

5. The payer now has physical custody of the child(ren), and payment of the full state‐owed arrears amount would deprive the child(ren) of needed income and create a hardship for the family.

6. The payer has extraordinary medical expenses for himself/herself or a family member.

7. The payer is jobless, has exhausted unemployment benefits or is not eligible, has limited assets, and has limited income.

8. The payer has been living in a long‐term (not a “night by night” or “drop‐in”) homeless shelter or has been participating in a long‐term homelessness program for at least 30 days.

In order to become eligible for the program you must first fully COMPLETE, SIGN AND DATE the “Request to Discharge State‐Owed Debt” DHS‐681. The forms you need, and additional information about the arrears discharge programs, are available online at www.courts.michigan.gov.

HELP! COULD I GO TO JAIL AT THIS CHILD SUPPORT ENFORCEMENT HEARING!

            Facing a child support enforcement hearing? Here’s a run-down of what you should expect:

            The moving party needs to prove that (1) a support order exists, (2) the payor had notice of entry of the order, and (3) an arrearage exists.[1] The family court may find the payor in contempt if the court finds that the payor is in arrears and that (1) the payor has the capacity to pay all or some of the amount due through the exercise of diligence, MCL 552.635(1)(a); (2) the payor has failed to obtain a source of income and has failed to participate in a work activity after referral by the Friend of the Court,    MCL 552.635(1)(b); or (3) the payor has the capacity to pay out of currently available resources, MCL 552.633(1).

A.        RESOURCES TO PAY     

            If the claim is that the payor has currently available resources, the court may presume, in the absence of proofs to the contrary, that the payor has currently available resources equal to four weeks of payments. It may not find the payor has more than four weeks of payments without proof of those resources by the Friend of the Court or the recipient.[2]

            Among the factors that may be considered in determining the ability to pay are the following:

• employment history

• education and skills

• work opportunities

• attempts to find work

• the payor’s personal history, including marital status and means of support

• real and personal assets and any transfer of assets to another

• efforts to modify the decree if it is considered excessive under the circumstances

• health and physical ability for gainful employment

• availability for work

• the payor’s location since the judgment and reasons for moving, if applicable[3]

            If the payor is found in contempt because he or she has the capacity to pay out of available resources, the court may enter an order to do one or more of the following:

• commit the payor to the county jail or an alternative to jail or other penal or correctional facility

• commit the payor to the county jail or an alternative to jail with work-release provisions

• condition a suspension of a driver’s license, an occupational license, a recreational or sporting license, or any combination of these licenses on noncompliance with an order for a scheduled payment of the arrearage

• order the payor to participate in a work activity

• order the payor to participate in a community corrections program if available within the court’s jurisdiction

• order the payor to pay a fine of not more than $100

• place the payor under the Friend of the Court’s supervision for a term fixed by the court with reasonable conditions, including requiring the payor to participate in a parenting program or a work program; to participate in drug, alcohol, or other counseling; to seek employment; to continue compliance with a current support or parenting time order; or to enter into and comply with an arrearage payment plan[4]

B.        LICENSE SUSPENSIONS

            The conditions under which a license may be suspended and the procedures for suspension for failure to pay support are outlined in MCL 552.628–.630. A license may be reinstated when the court enters an order rescinding a suspension order or the payor obtains a certificate from the Friend of the Court showing compliance with the support order and provides that certificate to the Secretary of State within 10 days of issuance. The payor must also pays a reinstatement fee.[5] However, the Friend of the Court can recommend and the family court can order a repayment schedule, at which time must enter an order rescinding the suspension, which the Friend of the Court must forward to the agency within seven days of issuance.[6]

C.        MODIFICATIONS

            The family court may modify child support provisions in judgments at any time until the child reaches 18 years of age, and until the age of 191/2 under statutes providing for postmajority support. In contrast to the relatively high threshold for motions to change custody, there is no barrier to modifications of support. The specific statutes provide for modification

• “as the circumstances of the parents, and the benefit of the children require,” MCL 552.17(1) (divorce, separate maintenance, annulment);

• “upon proper application to the court and due notice to the opposite party,” MCL 552.455 (FSA); and

• “for proper cause shown or because of change of circumstances,” MCL 722.27(1)(c) (Child Custody Act).

As for any determination of child support, the MCSF applies to modifications of child support. True,  MCL 552.603 severely restricts the availability of retroactive modification of past-due support payments in domestic relations matters. Generally, payments due under a support order are not subject to retroactive modification and may be modified only from the date that notice of a petition for modification was given to the other party. However, this provision does not apply to ex parte support orders and temporary support orders entered pursuant to MCR 3.207.[7]

[1]           Sword v Sword, 399 Mich 367; 249 NW2d 88 (1976).

[2]           MCL 552.633.

[3]           See Sword, 399 Mich at 378–379. (These considerations are also used in income imputation. Rohloff v Rohloff, 161 Mich App 766; 411 NW2d 484 (1987).)

[4]           MCL 552.633(1).

[5]           MCL 257.321c(3), 324.43559(3), 338.3434.

[6]           MCL 552.630.

[7]           MCL 552.603(3); see also Proudfit v O’Neal, 193 Mich App 608, 484 NW2d 746 (1992) (temporary child support order); Thompson v Merritt, 192 Mich App 412, 481 NW2d 735 (1991).

YOU WON’T GET CREDIT FOR PAYING, BUT IT SUCKS WHEN YOU DON’T: THE EFFECT OF UNPAID CHILD SUPPORT ON YOUR CREDIT REPORT

Most guys don’t mind paying child support – it’s when they fall a little bit behind and can’t catch a break that the problems erupt. Maybe it’s the ex threatening to take him to court if he is even one day late. Maybe it’s her lawyer sending him a letter that his payment is past due, completed with a “friendly reminder” that he can be held in contempt of court and  tossed into jail until he pays up. Or maybe it’s his son or daughter asking him why mom says we can’t have x, y or z because you aren’t supporting us anymore. Whatever it is, most guys dread the feeling of being labeled a “deadbeat dad” simply because they’ve fallen on hard times and can’t make their payments as timely as they once did, and would if they could.

Some of those guys work really hard to pay on time. They get second or third jobs and skip other bills to pay child support. Their ex and children might appreciate it, but they won’t get a glowing score on their credit report, as one might get for making timely mortgage, car and loan payments.

Worse, for those guys struggling to keep their payments current, the problems do not stop with their ex, her lawyer and their kids. Federal law allows the child support agency to report a delinquent payor who is just $1,000, and sometimes less, behind!  That delinquency will appear on all three of the national credit agency reports, and although it may not necessarily prevent the payor from obtaining loans, some loan officers may require the payor to bring the support account current or provide proof of a plan to do so before lending money.

The reporting process starts with a notice. If you receive this notice, do not ignore it. You have only 21 days, at most, to contact the state child support agency before the agency sends the information for credit reporting.  The notice must include your name and address, the amount of child support owed and your right to contest reporting. Check all of this information for accuracy.

Your right to contest reporting is not unfettered. Rather,  you can only contest the amount claimed owed and whether you have made any payments since the child support agency mailed you the notice. If the arrears amount is correct and meets the agency’s threshold for reporting, you must pay the arrears within 21 days to prevent reporting. Otherwise, on it goes to your credit report.

Try to prevail upon the agency to give you a break, and you are probably out of luck. In many states, like Michigan, where I practice, the child support agency does not have discretion to withhold reporting. In other words, once you’ve hit the threshold, the agency must send your information off for credit reporting – no ifs, ands or buts about it.

To avoid credit reporting if you are headed toward the threshold, you should consider:

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 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.

(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” -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.

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.

Whatever you do, don’t let yourself slip into a pattern of late payments. Your credit score will take a serious hit.

WHAT ABOUT THE LEASE? How to Pay Child Support Directly

You may have asked whether you can pay child support directly – or even done it – and received a stern no, do not do it, it is a bad idea, it does not work and it is not allowed under our laws  in response. For many cases, it is a bad idea, you should not do it, and it may not be allowed under the law that applies to your case – at least, according to the order that currently applies to your case. However, that does not make it impossible to pay child support directly, and, sometimes, it is a good idea.

Is it Possible?

By now, you have probably heard of child support “guidelines” or “formulas” or “calculators.” Since the early 1980s federal enactment of the Child Support Enforcement Amendments, all States receiving federal dollars to administer child support programs –currently, all of them -- must have a uniform method for determining how much child support to pay per child. The CSEA also established a national advisory panel on child support guidelines. The panel became a part of the federal Office of Child Support Enforcement. With the panel’s assistance, states were to establish numeric guidelines, also known as “child support formulas,” to calculate child support. The guidelines were to be advisory only. By 1988, the guidelines garnered favor, particularly because they were predictable. Therefore, Congress passed the Family Support Act. The FSA required states to make the guidelines presumptive, not advisory.

That is, the guidelines-recommended amount should be presumed the amount of child support to order, unless the payor and/or the payee establish that the amount is “unjust or inappropriate.” What is “unjust or inappropriate” depends on the nature of the case and the judge.

This is one method for deviating from the guidelines. Look for circumstances in which one parent assumes an extraordinary amount of debt (maybe the entire mortgage shortfall) or has a serious health condition.

Another is the method of payment. Even if the judge requires parents to pay the recommended amount, in most States parents remain free to determine the method of payment so long as neither parent owes support to the State (for example, for the time a child was in foster care).

Direct Pay – Third Party

One method is a payment to a third party who provides necessaries. “Necessaries” are food, clothing, shelter, education, childcare and other basic living expenses. Parents most often pay third parties to maintain control over a debt that is in the parents’ names or the paying parent’s name, and which would trigger a collection action and/or a poor mark on a credit report if not timely paid.

For example, you might prefer to pay the lease for the van awarded to your ex-wife because she uses the van to take your children to and from school, hockey practice, friends’ events, etc., and the lease agreement is in your name. This way, you know the payment is made and you provide a necessary – transportation – for your children.

As another example, you might want to pay for your children’s cell phones so that you can correspond with them at any time. Just be sure your judge treats a cell phone as a “necessary” and not an “extra.”

As a final, and most common, example, you may prefer to pay the home mortgage because you are the sole mortgagee and your children will reside in the home. This is one way to deal with a mortgage in one parent’s name for a home the other parent receives as a result of a settlement or a trial. Be sure your divorce decree specifies what happens if you cannot pay the mortgage, who claims tax benefits and whether either parent can renege on the agreement or request a modification upwards or downwards.

Whatever you do, do not pay a third party without permission from the other parent and            the judge in your support order. If you do not have this permission, then, in most States, your payment is a gift, and you will not receive credit for it. So, you could end up paying twice.

Direct Pay – Other Parent

Another method is to pay the other parent directly, rather than the State. States vary on options here, so be sure to speak with an attorney about the options available to you, but, in many States, the parent obligated to pay child support makes a monthly payment to the State Support Disbursement Unit (the “SDU” or the “IV-D agency”), which then allocates the payment between State-owed fees and child support, distributes it among the parent’s files (if the parent has more than one child owed support), then disburses it to the receiving parent. As you can imagine, this process takes time, sometimes months, and it is ripe for human error.

Parents in a bind, for example when a child has an unanticipated school expense, usually want support now. The risk is, you could make a direct payment out of the goodness of your heart – you are a parent, after all – but not receive credit for it.

You may prefer to pay your ex directly. That is ok, so long as your child support order allows direct payments and your relationship with your ex suggests the two of you will not fight, later on, about whether you actually made the payment.

Mistakes to Avoid

If you are contemplating direct payments, either to a third party or to the other parent, avoid these common mistakes:

Payment Without Permission – If you pay the other party or a third party directly and do not have permission from the judge, then in most States that payment is conclusively a gift, and you will have to pay the parent as specified in your support order anyhow. This means, you pay twice.

Using Cash – It may be a pain to write a check or set up a direct deposit from your account to your ex’s, but it is a must. Do not pay your ex in cash – you are asking for a disagreement in the future over whether you paid, how much you paid, and what your payment was for. A few dollars here and there may seem insignificant – would you really write a check for $20 for your child’s cough medicine? – but the “here and there” adds up. If you must use cash, you must obtain a receipt from your ex that specifies the date, the amount and what the payment was for.

Trusting You Ex – If you agree to pay the mortgage directly, do not give your ex the money with the understanding that she will make the mortgage payment as she pays the other household bills. You made an agreement for a direct pay method for a reason, and you need to follow it.  Who’s to say your ex will not keep the money, or make the payment late, or deny it altogether?

Forgetting “What-If”s – It may be a good idea to agree to pay the van lease, the mortgage, etc., directly now. You are in a stable job, have the money and want to keep this control. But, what happens if you lose your job? What happens if you want to sell the home? What if you ex becomes employed and you would otherwise qualify for a downward support modification? Be sure your support payment method contemplates these “what-if”s by including language that allows for support modifications, that specifies when and how direct payments terminate, that clarifies whether the parents intend for support to continue after the child reaches the age of majority, and so forth. The “what-if”s may never happen, but, if your agreement is to last, you must guard against them.

These are easy mistakes to make, but they are also easy to avoid -- with proper planning, that is. So, if you are contemplating direct child support payments, have a frank and thorough discussion with your attorney about your options and the law that applies to them.

Because making direct payments may not be such a bad idea after all.

IN THE COLD & OUT OF CASH: PASSPORT PROBLEMS FOR SUPPORT NON-PAYORS

It’s been a long, cold winter. Your divorce was over two years ago, or so you thought. That was when the judge ordered you out of your home, into the home you used to rent to college students (none too careful to patch the holes in the wall from too many games of indoor baseball). That was when the judge ordered you to payoff half of your and your ex-wife’s credit cards (most from her weekly trips to the spa and mall on the expensive side of town). That was when your judge reduced you to a weekender parent (who pays child support like a bottomless ATM or the proverbial money tree). But that was also when you ventured out into the single life, determined to make it on your own, dumpy house and debt and weekend child and all. And for a time, you did.

But this winter was different. You lost your job. Your car broke down. Your ex-wife nit-picked every weekend parenting time. She had an expensive lawyer. You had none. To appease her, you started paying child support directly to her. She hated waiting for her checks in the mail from the State. She promised she and her lawyer “would take care of everything,” so you ignored the past due support notices in the mail. She wouldn’t try to collect, so why worry?

It was time for a break. Yes, a short trip in the sun with the money your parents gave you on your birthday – “Just in case you need it,” they said, eyeing the holes left in your rental home. Maybe you could find a job overseas. You promised yourself you would not spend much, only for the basics. You searched and searched online to find the cheapest prices –- a red-eye flight mid-week, an economy hotel close to the beach, complementary breakfasts with fruit you could stow away for lunch. This would be a pleasant parting from the stress of it all, just for a few days.

But not so fast. The Secretary of State revoked your passport.

There are plenty of costs for parents who dodge child support payments, most of which parents already know. Your judge can send you to jail, have a sheriff boot your car, order your driver’s and professional licenses revoked, and allow the State to garnish your wages, tap into your bank accounts and collect your income tax returns, to name a few. But other costs for even unintentional conduct go unknown, or unconsidered like urban myths, until they stare you in the face, in the cold of winter when you are ready for a break – passport denial and revocation.

Could the Secretary of State deny or revoke your passport when you have child support arrears? Yes! Here’s more:

Why passports?

This question is more complex than its two-word simplicity suggests.

As a simple matter, “deadbeat parents” are difficult to reach outside the country. The State court is more likely to find success if these parents remain in the country, within process server and police officer reach. But the same is true if the court just sent these parents to jail, whether or not they had passports. Why should the federal government have the power to tamper with their passports, too?

That is a question of complex federal law. As we learn in civics class, our federal government has only the powers granted in the Constitution, and all others remain to the States. One of those State powers is the power to make and enforce domestic relations orders, like child support orders, and another is the power to make and enforce criminal laws, like felony non-support laws. See, e.g., United States v Mussari, 95 F3d 787 (9th Cir 1996). Then what federal interest is there? Money. As the Ninth Circuit Court of Appeals explained,

Congress also has financial concerns because unsupported children must look to the public fisc, including the federal treasury, for financial sustenance. That was the impetus for the enactment [of the passport laws] . . . . Surely it makes sense to assure that those who do not pay their child support obligations remain within the country, where they can be reached by our processes in an at least relatively easy way.

Eunique v Powell, 302 F3d 971 (9th Cir 2002). Therefore, there is at least a reasonable fit between the federal government’s interests and the passport laws. Id.

How does the Secretary of State deny and revoke passports?

Congress has provided federal funds under Title IV-D to help the States collect child support, but, in exchange, the States must enact federally-prescribed laws to collect support.

These include the passport laws. These laws must, at a minimum, establish a procedure for the State to certify individual support arrears to the Secretary of Health and Human Services (which administers the Title IV-D program) if the arrears exceed a statutory amount. 42 USC § 654. The amount may be $5,000 and as little as $2,5000. The laws must also require the State to notify the non-payor of the certification and afford the non-payor an opportunity to contest the certification with the State. Id. The laws may, in addition, allow the non-payor reprieve for personal, proven hardship, a payment plan, or a support modification. Id.

If the Secretary of Health and Human Services receives a State certification, the Secretary must transmit the certification to the Secretary of State for action.

If the Secretary of State receives a certification, the Secretary shall “refuse to issue a passport to such individual, and may revoke, restrict, or limit a passport previously issued . . . .” 42 USC § 652. Additionally, according to the Secretary of State’s regulations, the Secretary shall not issue “a passport, except for a passport for direct return to the United States . . . [if] the applicant has been certified by the Secretary of Health and Human Services as notified by a State agency under 42 USC § 652(k) to be in arrears of child support in an amount exceeding the statutory amount.” 22 CFR 51.60.

Certified individuals appear on a list in the Passport Name Check System. When the arrears are paid or do not exceed the statutory amount, the State sends a subsequent certification through the chain to remove the payor from the list. Do not make a last minute payment and expect your passport the next day, or even a few days later. Passport processing takes at least two weeks, in addition to the time needed to send notice of the payment to the proper State agencies, the Secretary of Health and Human Services and the Secretary of State. For those who cannot pay, usually, hardship exceptions 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). Merely wanting to be with a loved one in another country, fly overseas to search for work or go on a trip for a break from stress, however, is not enough.

Doesn’t this interfere with my right to travel?

Yes, it does, but that does not end the matter.

While we have a constitutional right to international travel, the right is “no more than an aspect of the liberty protected by the due process clause [that] can be regulated within the bounds of due process.” Haig v Agee, 453 US 280 (1981). By comparison, interstate travel implicates the freedom of association with our brother and sister citizens, which is a First Amendment right “virtually unqualified” and protected by “strict scrutiny.” Id. That difference means that restrictions on interstate travel must be narrowly tailored and the least restrictive means to justify a compelling government interest, whereas restrictions on international travel must be a rational, reasonable means to pursue a legitimate government interest. Some courts require a more exacting standard, somewhere between rational, reasonable review and strict scrutiny (like intermediate scrutiny), but even these courts have held that securing the collection of child support for children is both an important and a substantial government interest.

Every court to decide the issue has held that the passport laws for support arrears are constitutional because there is no automatic right to international travel. As the Ninth Circuit Court of Appeals explained,

[W]ithout violating . . . the freedom to travel internationally, Congress (and the State Department) can refuse to let [the non-payor] have a passport so long as she remains in substantial arrears on her child support obligations. She is free to . . . work or, if she likes, to be a faineant, but the Constitution does not require that she be given a passport.

Eunique v Powell, 302 F3d 971 (9th Cir 2002).Considering that enforcement often becomes illusory once the non-payor flees the jurisdiction, the restrictions make sense. Moreover, they are not absolute. The non-payor may pay the arrears, or at least pay them below the statutory amount, may receive a limited passport to return to the United States, and may request a waiver for business and family emergencies.

Shouldn’t I get a hearing before the Secretary of State denies or revokes my passport?

Yes, and you do.

While international travel is a “liberty interest” and the government may not deprive an individual of property or liberty without due process of law, all that due process requires is notice and an opportunity to be heard commensurate to the circumstances. The government must provide “notice reasonably calculated, under all of the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v Central Hanover Bank & Trust Co., 339 US 306 (1950). The opportunity to be heard need not be before the action or before every body that takes action.

The passport laws limit the non-payor’s opportunity for federal review. However, “there is no authority [for] the contention that due process can only be satisfied if a federal agency rather than a state or city agency provides the notice and hearing.” Weinstein v Albright, 261 F3d 127 (2d Cir 2001). Instead, the passport laws require States to provide notice and an opportunity to be head before the State agency before the State certifies the arrears to the Secretary of Health and Human Services. All courts deciding the issue have held that this framework assures the non-payor a meaningful opportunity to be heard because the State, not the federal government, has the power to determine the actual amount of arrears, retroactively modify arrears, conditionally waive arrears or otherwise grant remedial relief in lieu of certifying the arrears for passport revocation or denial. Indeed, the passport laws reduce the             federal government to a ministerial role. Id.

Therefore, requiring the federal government to also provide the non-payor with a hearing would be futile. Instead, the non-payor must address arrears with the State agency handling them. And promptly, too.

What can I do if my passport is denied or revoked?

What can a support non-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. 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 the passport statutory amount) you owe, and be sure to send that order to the appropriate person(s) 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: By federal law since 1996, States receiving federal assistance must have child support review procedures to review orders every three years upon a payor’s or a payee’s request. 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 these 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.

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.

File a Grievance: If your child support agency simply has the records wrong, contact the State support administration and ask for grievance forms. These forms allow you to report the local child support administrator for handling your file poorly. You will not receive an extra financial benefit (e.g. money for your pain), but you will put the State on notice of the errors in your file.

File a Lawsuit: Beware, this option will not work in all States. If you paid support but your ex did not report it, consider a lawsuit or motion against her for fraud, misappropriation of funds, contempt of your child support order, credit against your arrears, or something similar. You will need to speak to an attorney who practices in your State to learn what options are available.

Whatever you do, do not let those arrears build up, and do not trust that your ex-spouse will “waive” support. The State certifies arrears, and the federal government denies and revokes your passport, no matter what your ex has to say, and no matter how desperately you want a break or how cheaply you can do it. If you wait, you could be out in the cold with no passport, scraping for cash to pay down arrears with penalties for a very, very long time - no vacations included.

HOW TO END THE VISCIOUS CHILD SUPPORT COLLECTION CYCLE

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.

THE FIDM & YOU: THE QUARTERLY REVIEW FOR CHILD SUPPORT COLLECTION

Did you know the government could review your bank and credit union accounts at least once every financial quarter? Well, if you do or could owe child support, then the state government, the federal government, or both, will.

All states have agreements with banks, credit unions and other financial institutions doing business in the state to conduct a quarterly review of their account holders against a database called the Financial Institution Data Match. Financial institutions doing business in more than one state (e.g., CitiBank and Bank of America) may conduct the review with each state or with the federal Office of Child Support Enforcement. The purpose for the review is to identify accounts belonging to parents who are delinquent in their child support payments. The parent’s name, employment information, mailing and residential addresses, telephone number, even Social Security number – the information needed to open the account – are compared to the database, which lists the same identifying information for parents delinquent in child support.     If the financial institution finds a match, it must forward the account information for that parent to the state agency responsible for collecting the debt.

It goes like this. If you have or open a checking account, a savings account, a time deposit account, a demand deposit account, or a money market mutual fund, then the financial institution will compare your identifying information against the database at least once every quarter. (Certain retirement accounts, military pay and government benefits accounts are excluded.)          If you are in the database, then the l institution must return your name, mailing and residential address, Social Security Number, Taxpayer Identification Number and any other identifying information, such as employer and alias, to the state agency. The institution could pay or charge you a fee for nondisclosure, and the institution is not liable to you under state law or federal law for disclosing your private information to the state agency or for any of the consequences that disclosure causes, such as an over-collection of child support or a garnishment from a bank account that you intended to be a convenience account, such as an account held in your name but for your aging parent’s benefit. You cannot restrict the institution from disclosing this information, and, in fact, you could be charged with fraud for asking or changing your identifying information to keep the institution from comparing it to the database.

When the state agency receives this information, it will begin collection according to state law. Collection may include a levy against the account, a lump-sum garnishment to satisfy your arrears, an order to intercept any direct deposits to the account (except certain government and military benefits), a contempt hearing for you to explain why you cannot pay the arrears from that account, and jail-time if you do not, or more. Most states begin with intercepts and garnishments because they are quick and efficient – you will receive a notice in the mail of a pending intercept or garnishment or the short time period (usually 14 days) in which you can object, before the institution scoops the money out of your account and forwards it to the agency.

What can you do to avoid the FIDM? Honestly, when you have an arrearage, not a lot, at least not legally.

You should not open convenience accounts for relatives, such as elderly family members who want you to be able to write checks for them. These accounts will be in your name, and they will be compared to the FIDM database.

You should also not falsify information to avoid a match in the database, because, once the government catches on (the database is huge, and they will), you could be charged with state and federal offenses, in addition to interest and penalties for past due child support.

And if you are facing an arrearage, try to enter into an agreement with the court, the agency and the support recipient to pay those arrearages over time. Ask your court to adopt the agreement an order. Give a copy of the order to your financial institution, and make sure everyone knows you have a plan in place and, so, should not have your accounts garnished with the quarterly review.

Finally, talk to an attorney about any agreements to pay an arrearage over time, which accounts you can safely you and how to avoid an account garnishment if you do have an arrearage.

Otherwise, it is only a matter of time before the FIDM finds you.