CS settlement out of court?

[worriedandlost]

What is the name of your state? Texas

DH's divorce was final in late '80s. Court order was never enforced by the state. DH paid support directly to EX when he was able, sometimes more sometimes less than stated in decree (for various reasons I will keep personal) and no records were kept during that time by DH. Upon our marriage payments were made per decree to EX and records were kept.

Both children are over 18 now and no longer in any kind of school. Only 1 still lives with Ex. Ex now decides that she wants to pursue back child support. Offered a written demand for a settlement less than amount owed (based only on date of decree and date we started payments per decree, not considering any payments made to her before our marriage). In return for prompt payments up to the full amount she is demanding she will not file with the state for contempt.

I will be consulting a lawyer this week, but can she really do this or are we being 'scamed' somehow? Is there a statute of limitations on the court order? Will we sign this and pay her the full amount and then she can file with the state anyway? Could this be a legally binding document since it is signed by both Ex and DH?

 

[Ohiogal]

What is the name of your state? Texas

DH's divorce was final in late '80s. Court order was never enforced by the state. DH paid support directly to EX when he was able, sometimes more sometimes less than stated in decree (for various reasons I will keep personal) and no records were kept during that time by DH. Upon our marriage payments were made per decree to EX and records were kept.

Both children are over 18 now and no longer in any kind of school. Only 1 still lives with Ex. Ex now decides that she wants to pursue back child support. Offered a written demand for a settlement less than amount owed (based only on date of decree and date we started payments per decree, not considering any payments made to her before our marriage). In return for prompt payments up to the full amount she is demanding she will not file with the state for contempt.

I will be consulting a lawyer this week, but can she really do this or are we being 'scamed' somehow? Is there a statute of limitations on the court order? Will we sign this and pay her the full amount and then she can file with the state anyway? Could this be a legally binding document since it is signed by both Ex and DH?

By not going through the state, your DH made a lot of nice gifts to the ex. If she takes him to court with the order and the state has no records of him paying the state, he will show as being completely in arrears. Support not paid through the state counts as nothing more than a gift. You guys are in a bad place. she can go to court and get the entire period of support since it wasn't paid through the state.

 

[LdiJ]

By not going through the state, your DH made a lot of nice gifts to the ex. If she takes him to court with the order and the state has no records of him paying the state, he will show as being completely in arrears. Support not paid through the state counts as nothing more than a gift. You guys are in a bad place. she can go to court and get the entire period of support since it wasn't paid through the state.

Well...that isn't entirely correct. Not everyone is required to go through the state to pay their child support. Many older orders did not require that, and there are still a handful of people whose orders don't require that now.

Therefore, unless he was ordered to go through the state and didn't, then he doesn't have the problem of the "gift" issue.

However, his poor record keeping for the period prior to his marriage is a serious problem. Particularly since its admitted that he often didn't pay support in full or on time.

If dad decides to settle this with mom I strongly recommend that he have an attorney handle the settlement. That will ensure that its handled legally.

 

[nicetryadmin]

Well...that isn't entirely correct. Not everyone is required to go through the state to pay their child support. Many older orders did not require that, and there are still a handful of people whose orders don't require that now.

Therefore, unless he was ordered to go through the state and didn't, then he doesn't have the problem of the "gift" issue.

However, his poor record keeping for the period prior to his marriage is a serious problem. Particularly since its admitted that he often didn't pay support in full or on time.

If dad decides to settle this with mom I strongly recommend that he have an attorney handle the settlement. That will ensure that its handled legally.

And this coming from a someone who is NOT a lawyer. While Ohiogal is.

Oh, let me guess...from judges, magistrates, court janitors and other associated staff you've talked to, huh?

 

[ceara19]

And this coming from a someone who is NOT a lawyer. While Ohiogal is.

Oh, let me guess...from judges, magistrates, court janitors and other associated staff you've talked to, huh?

Actually, LdiJ is right here. At the time the OP's husband's original order was issued, it was very commom for the orders to state that the NCP send the child support directly to the CP. If that is the way his order was written, he broke no laws. As to what the judge will decide, no one knows. Some make it the burden of the CP to prove the CS was NOT paid, some are just the opposite. Depending on exactly how old the children are now, the CP may have a difficult time explaining why she waited so long to collect the arrears if the NCP had been so far behind for so many years.

 

[Ohiogal]

I should have clarified.. I was going based on current law. Currently -- especially in Ohio -- payments must go through CSEA in order to count. even if there is an agreement stating elsewhere. This holds for new cases and cases in the last few years. I didn't notice the date of 1980s. I apologize. If it were a current situation it would be considered a gift. From the 1980s it may be okay but if any more payments are due he should try to involve CSEA to make sure he gets credit for them.

 

[worriedandlost]

Thanks for the responses! The two atty's I talked to yesterday told me that as far as 'gifts' were concerned, unless it stated specifically in the decree that any payments made out to the ex instead of the state are considered a gift, then they will have to accept those payments towards the support. Problem now lies with his record keeping - or lack thereof.

Also, the agreement is valid and legal as long as it is signed by both parties. To assure that she can never do anything above and beyond the agreement it SHOULD be filed with the divorce records as well as with the state child support people. It should also, but not neccesarily, be written by an atty. Again as long as it is signed by both of them, then even if she tries to sue, she will have a really hard time explaining why she accepted or even offered the agreement, as well as the length of time she waited before claiming that he didn't pay.

So we will take our chances and sign the agreement and make sure she gets her $ on time.