Mediation -- what is fair? long...maybe controv..

[cimmaryn]

What is the name of your state? GA

I have posted before about my situation -- my first husband has not paid child support for ~16 years. I found him back in October, and after trying to work out a deal, decided to go ahead and file for contempt of court. We have a court date, but are mandated to go to mediation first. Ex has 4+ years probation for federal crime (imbezzelment).

According to my calculations, ex owes ~$70K in back support -- not counting medical (he was ordered to pay 1/2), health insurance (1/2 again), and life insurance (1/2) -- and not counting interest (that would bring the amount to around ~150K). He also has not seen his son since before we divorced (he disappeared after refusing to pay support).

Ex makes 42K and has a 9 year old daughter from another marriage (he pays support for her -- although not as much as court would have ordered based on his salary). He has a new wife, no other children.

So, I am trying to prepare for the mediation. I am willing to work out a deal that is fair (I'd rather he not go to jail, which might happen because of probation if we went to court). I'd prefer to get some support!

In the divorce decree, he agreed to pay support until son is 19 or out of HS (whichever is last). He also agreed to pay for 1/2 of all college expenses (I realize this is a controversial subject -- all I will say is he agreed to this condition, probably because he was living with another woman and child and was more interested in bonking her than negotiating about this).

My son had decided to attend a University in Chicago, which will cost ~30K per year. He will apply for work study and needs-based/merit scholarships, but it will still be pretty expensive. (Before anyone says "why not local college" -- he is going to this school for a very specific degree that is not offered in our state). I realize these expenses have not occurred yet, just wanted to throw them in the discussion for consideration. Btw, regarding financial aid -- without ex's income, my son could qualify for aid for all but about 3K per year. With ex's income, that figure will increase significantly.

So, when I go to mediation, assuming neither of us wants to go to court (he has more motivation to avoid it than I do) -- what is fair? What would be reasonable for me to ask for? I am looking for suggestions - I know no one can really tell me definitively.

Obviously, I would prefer to get the full 150K plus 1/2 college -- but that probably will not happen. Plus, although I hate to conceed a point to him, I did not try to find him until this year (although the technology has been around for at least the past 5 or so years) because (frankly) I was afraid he would just hurt my son. I never prevented him from seeing him -- but when we split he would schedule to see son then not show up, or call with a lame excuse. He saw son twice from time we seperated to time we divorced, then never again. He had proven himself to be a liar, a cheat, a thief, and possibly a perv (young teen girls -- kicked out from being volunteer at 2 HS band programs because of accusations). Looking back, I still do not feel it was MY job to pursue HIM to see his son. Because of my family's high profile (in certain circles), he could have gotten in touch with me ANY time.

Anyway, I am thinking because of circumstances I would be willing to be flexible regarding the interest that has accrued on the amount he owes. Am I being stupid?

Should I just offer him a lump sum amount? For instance, tell him he can pay me 100K total (including college/backsupport/current support), for X amount per month?

If we went to court, any idea about what the Judge would order? According to the divorce decree, he should be paying $550 a month for child support at this point. Should I just ask for the whole shebang and not negotiate?

He started paying $260 a month back in February (when he realized I was filing contempt). That amount is what he was supposed to pay back in 1991 with the original order. It's nice to get anything -- but he has refused to pay what would be the current amount ($550) and got all cranky when I suggested he get a second job to pay what he owes.

So, where would you go with this? Ask for everything and let the Judge decide? Negotiate? Forgoe the interest? Take his last offer (30K total -- not!).

Sorry this was so long.

Cimmaryn

 

[Gracie3787]

What is the name of your state? GA

I have posted before about my situation -- my first husband has not paid child support for ~16 years. I found him back in October, and after trying to work out a deal, decided to go ahead and file for contempt of court. We have a court date, but are mandated to go to mediation first. Ex has 4+ years probation for federal crime (imbezzelment).

According to my calculations, ex owes ~$70K in back support -- not counting medical (he was ordered to pay 1/2), health insurance (1/2 again), and life insurance (1/2) -- and not counting interest (that would bring the amount to around ~150K). He also has not seen his son since before we divorced (he disappeared after refusing to pay support).

****The only caculations that will apply are the court's or CSE's. You need to get a printout of payments and arrears owed from either CSE or the court.****

Ex makes 42K and has a 9 year old daughter from another marriage (he pays support for her -- although not as much as court would have ordered based on his salary). He has a new wife, no other children.

****Keep in mind that the law allows for a deduction from his income for the amount of CS ordered (actually paid) for another child.****

So, I am trying to prepare for the mediation. I am willing to work out a deal that is fair (I'd rather he not go to jail, which might happen because of probation if we went to court). I'd prefer to get some support!

****Just remember, mediation is just that, you do not have to agree to or settle for anything that you are uncomfotable with.****

In the divorce decree, he agreed to pay support until son is 19 or out of HS (whichever is last). He also agreed to pay for 1/2 of all college expenses (I realize this is a controversial subject -- all I will say is he agreed to this condition, probably because he was living with another woman and child and was more interested in bonking her than negotiating about this).

**** This will be a good bargaining tool for you. You can always agree to lower or eliminate this provision.****

My son had decided to attend a University in Chicago, which will cost ~30K per year. He will apply for work study and needs-based/merit scholarships, but it will still be pretty expensive. (Before anyone says "why not local college" -- he is going to this school for a very specific degree that is not offered in our state). I realize these expenses have not occurred yet, just wanted to throw them in the discussion for consideration. Btw, regarding financial aid -- without ex's income, my son could qualify for aid for all but about 3K per year. With ex's income, that figure will increase significantly.

****Bring up the fact that Dad's income is actually preventing financial aid, but also remember that you'll be collecting arrears while son is no longer at home, which most likely your ex will point out.****

So, when I go to mediation, assuming neither of us wants to go to court (he has more motivation to avoid it than I do) -- what is fair? What would be reasonable for me to ask for? I am looking for suggestions - I know no one can really tell me definitively.

Obviously, I would prefer to get the full 150K plus 1/2 college -- but that probably will not happen. Plus, although I hate to conceed a point to him, I did not try to find him until this year (although the technology has been around for at least the past 5 or so years) because (frankly) I was afraid he would just hurt my son. I never prevented him from seeing him -- but when we split he would schedule to see son then not show up, or call with a lame excuse. He saw son twice from time we seperated to time we divorced, then never again. He had proven himself to be a liar, a cheat, a thief, and possibly a perv (young teen girls -- kicked out from being volunteer at 2 HS band programs because of accusations). Looking back, I still do not feel it was MY job to pursue HIM to see his son. Because of my family's high profile (in certain circles), he could have gotten in touch with me ANY time.

**** If your ex can prove that you didn' make any effort to enforce the CS order until last year (or if you admit it) he could use the defense of laches. You are correct, it wasn't your job to locate him for visitation, however, you did have a legal duty to attempt to enforce the CS order.****

Anyway, I am thinking because of circumstances I would be willing to be flexible regarding the interest that has accrued on the amount he owes. Am I being stupid?

****No, you're not being stupid at all, of course this is just my personal opinion, but I think you are smart in trying to collect something versus nothing if you push too hard. Although interest is allowed by law it is also one of the things that can easily push a NCP into running and refusing to pay anyhting at all. You can agree to lower the accumulated interst and you can also agree that as long as payments are made that the interst will stop. or be abated.****

Should I just offer him a lump sum amount? For instance, tell him he can pay me 100K total (including college/backsupport/current support), for X amount per month?

*** Don't make any offers on current support. He should be paying the statutory amount of that while son is still a minor. On the arrears and college you can agree to a set amount total and also a set amount monthly. He owes alot and it will take him many many years to apay it off so you need to agree to the highest amount you can without it pushing him into nonpayment in a year or two.****

If we went to court, any idea about what the Judge would order? According to the divorce decree, he should be paying $550 a month for child support at this point. Should I just ask for the whole shebang and not negotiate?

**** There's no way to guess what a Judge will order. Is the $550.00 a month the amount that was ordered in a modification? Under the circumstances of it being such a large amount of arrears, you will be better off to try to negotioate first, because you never know what a Judge is going to do.****

He started paying $260 a month back in February (when he realized I was filing contempt). That amount is what he was supposed to pay back in 1991 with the original order. It's nice to get anything -- but he has refused to pay what would be the current amount ($550) and got all cranky when I suggested he get a second job to pay what he owes.

So, where would you go with this? Ask for everything and let the Judge decide? Negotiate? Forgoe the interest? Take his last offer (30K total -- not!).

****I agree, do not take his last offer. Before you go into mediation write up what you are willing to agree to and what you will absoloutly not agree to. It will help alot to have it allwritten out to refer to because it can get very confusing during mediation.****
Sorry this was so long.

Cimmaryn

Basically you know what your financial situation is, what his financial situation is, and how far you can push him before he just quits paying alstogether, so base your decision on those things. Good luck.

 

[LdiJ]

I would like to add that if your ex is on probation for embezzlement, then its VERY likely that his wages are already being garnished for restitution. There may actually be nothing much for you to get at this time. Just keep that in mind. 42k isn't much when there are two child support orders AND restitution to be paid. It may not even be possible for your child support to be garnished from his pay, because he very possibly is already at the legal limits for garnishment.

 

[nextwife]

I would like to add that if your ex is on probation for embezzlement, then its VERY likely that his wages are already being garnished for restitution. There may actually be nothing much for you to get at this time. Just keep that in mind. 42k isn't much when there are two child support orders AND restitution to be paid. It may not even be possible for your child support to be garnished from his pay, because he very possibly is already at the legal limits for garnishment.

I agree. As soon as I read "embezzelment" I thought he probably has virtually no assets, and might be paying restitution. Cimmarym may be dreaming if she thinks he has any ability to pay a lump sum settlement. It's possible, but I'd be very surprised.

 

[cimmaryn]

mediation

I know I probably will not get a "lump sum" -- sorry, what I meant was offering for him to pay 100K total (monthly payments, etc.) but not all at once. Another complicating factor -- he filed bankruptcy in 2001.

You bring up an interesting question. What will take priority for the Judge, between the federal repay of embezzelment, the younger child, and my son? Will the Judge say he cannot afford to pay anything more based on current responsibility and income -- or will he set a reasonable amount (based on what is owed and current cs) and basically say "get a second job"?

If the Judge would dismiss the back cs -- would I be better off negotiating a much smaller amount with him than going to court? I hate to put ex in position of power regarding negotiations...

Cimmaryn

 

[nextwife]

I know I probably will not get a "lump sum" -- sorry, what I meant was offering for him to pay 100K total (monthly payments, etc.) but not all at once. Another complicating factor -- he filed bankruptcy in 2001.

You bring up an interesting question. What will take priority for the Judge, between the federal repay of embezzelment, the younger child, and my son? Will the Judge say he cannot afford to pay anything more based on current responsibility and income -- or will he set a reasonable amount (based on what is owed and current cs) and basically say "get a second job"?

If the Judge would dismiss the back cs -- would I be better off negotiating a much smaller amount with him than going to court? I hate to put ex in position of power regarding negotiations...

Cimmaryn

There are federal laws prohibiting garnishment beyond certain total percentages of income.

As to "moonlighting: Not all jobs ALLOW time for a second job, so I would not count on it. Example: my husband's "job" is such that he often puts in MANY at-home hours into the wee hours AND on weekends finishing projects. He also travels regularly, being gone a few days at a time, as needed, which also makes a second job impossible. I, for example, have a full-time job that often requires I attend various evening networking events, which fall on whatever night they fall, and I am expected to be at those events. These are in addition to my full-time daytime hours.. So, if I or hubby took a part time job, we could very well LOOSE our full-time jobs. Anyone in commission sales, a profession, or a salaried position MAY possibly be prohibited from having other employment by their full-time employment demands.

 

[LdiJ]

I know I probably will not get a "lump sum" -- sorry, what I meant was offering for him to pay 100K total (monthly payments, etc.) but not all at once. Another complicating factor -- he filed bankruptcy in 2001.

You bring up an interesting question. What will take priority for the Judge, between the federal repay of embezzelment, the younger child, and my son? Will the Judge say he cannot afford to pay anything more based on current responsibility and income -- or will he set a reasonable amount (based on what is owed and current cs) and basically say "get a second job"?

If the Judge would dismiss the back cs -- would I be better off negotiating a much smaller amount with him than going to court? I hate to put ex in position of power regarding negotiations...

Cimmaryn

The judge isn't going to necessarily reduce his child support and is unlikely to reduce any arrearages. It could happen, but its not necessarily likely.

What I was talking about doesn't have anything to do with what a judge might or might not order....it has to do with what you can reasonably hope to COLLECT at this point.

 

[cimmaryn]

I did try...

I did actually try to enforce the child support order originally. He ended up paying $2500 in December of 1991 to my attorney to bring his payments current. He then paid for 1-2 months and stopped. I garnished his wages for a short period in 1992 (collected about what it cost to file the garnishment) and he was 'fired' from that job. He then sent two letters saying "I'm going to be working at X and I'll send money then..." -- never sent any money. Then he disappeared, and my attorney suggested that I wait a few years for ex to settle into a job he wanted to keep and try garnishment again. By then, I had no clue where he was (except I knew he was in the NY/NJ area where he grew up).

So, I did TRY to collect but the effort was highly expensive and unproductive. I did not have the resources at the time to do more.

 

[cimmaryn]

Extra work....

There are federal laws prohibiting garnishment beyond certain total percentages of income.

As to "moonlighting: Not all jobs ALLOW time for a second job, so I would not count on it. Example: my husband's "job" is such that he often puts in MANY at-home hours into the wee hours AND on weekends finishing projects. He also travels regularly, being gone a few days at a time, as needed, which also makes a second job impossible. I, for example, have a full-time job that often requires I attend various evening networking events, which fall on whatever night they fall, and I am expected to be at those events. These are in addition to my full-time daytime hours.. So, if I or hubby took a part time job, we could very well LOOSE our full-time jobs. Anyone in commission sales, a profession, or a salaried position MAY possibly be prohibited from having other employment by their full-time employment demands.

That is true, but he works at a music store (I think he does advertisement/ordering/etc.). I don't think the issue is that he cannot work an extra job, just that he does not see the need. My opinion, of course.

 

[ceara19]

I would like to add that if your ex is on probation for embezzlement, then its VERY likely that his wages are already being garnished for restitution. There may actually be nothing much for you to get at this time. Just keep that in mind. 42k isn't much when there are two child support orders AND restitution to be paid. It may not even be possible for your child support to be garnished from his pay, because he very possibly is already at the legal limits for garnishment.

The child support order would take priority over the restitution garnishment.

 

[LdiJ]

The child support order would take priority over the restitution garnishment.

That is true, however, the way restitution works is that if you don't pay it, your probation is revoked. Therefore he would end up in jail, and she wouldn't be able to collect the support anyway.

 

[ceara19]

That is true, however, the way restitution works is that if you don't pay it, your probation is revoked. Therefore he would end up in jail, and she wouldn't be able to collect the support anyway.

The employer would be required to notify the court and his PO when lowering or stopping the restitution garnishment. More then likely, the restitution order would be reviewed to try and come up with a workable solution so that he can pay both the child support and restitution. Just putting him in prison without first trying to work out a solution helps NO ONE.

 

[LdiJ]

The employer would be required to notify the court and his PO when lowering or stopping the restitution garnishment. More then likely, the restitution order would be reviewed to try and come up with a workable solution so that he can pay both the child support and restitution. Just putting him in prison without first trying to work out a solution helps NO ONE.

One would like to think that it works that way....however, I have observed in real life that it doesn't. A friend's sibling was in a similar situation and did indeed have probation immediately revoked when restitution was no longer able to be garnished, and the sibling did not have other funds available to pay the restitution.

Anyway, the whole point that I was making to the OP is that she shouldn't count on being able to collect the child support or arrears at this point. She should of course try, but she needs to be mentally prepared for the fact that she may not be able to collect.