Bogus Back Support

What is the name of your state (only U.S. law)? California

I just inherited money. My ex-wife found out.She found an internet attorney who wrote me a demand letter saying I owe back support plus interest. My daughter is 32 years old. There is no record of me owing back support with the DCSS in CA, nor is there a judgement or court order. Now, because of this letter that the executor also received, my money is being held until this is resolved.

How can a demand letter hold up anything without proof? My sister is the executor and afraid of being sued.

bren444 said:

What is the name of your state (only U.S. law)? California

I just inherited money. My ex-wife found out.She found an internet attorney who wrote me a demand letter saying I owe back support plus interest. My daughter is 32 years old. There is no record of me owing back support with the DCSS in CA, nor is there a judgement or court order. Now, because of this letter that the executor also received, my money is being held until this is resolved.

How can a demand letter hold up anything without proof? My sister is the executor and afraid of being sued.

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Did you faithfully pay any child support you were ordered to pay as part of your divorce? If you were ordered to pay support in your divorce decree, and you did not do so, then you owe the money. Your sister is behaving prudently.

Yes, I did pay.

bren444 said:

Yes, I did pay.

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In full? I am asking this for a reason. Do you have any proof that you paid in full? Were you ordered to pay through the state or did you pay mom directly?

The thing is, that you sister must protect herself. Therefore, unless you know for certain that you absolutely paid everything that you were required to pay, and hopefully can prove some of it at least, your sister cannot release the money to you until the matter is settled, legally.

bren444 said:

What is the name of your state (only U.S. law)? California

I just inherited money. My ex-wife found out.She found an internet attorney who wrote me a demand letter saying I owe back support plus interest. My daughter is 32 years old. There is no record of me owing back support with the DCSS in CA, nor is there a judgement or court order. Now, because of this letter that the executor also received, my money is being held until this is resolved.

How can a demand letter hold up anything without proof? My sister is the executor and afraid of being sued.

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The way it works is that the executor can only disburse funds if everything is clear and uncontested. If there is a question, they must hold up disbursement (or they can be held liable for any erroneous payments).

ANYONE can claim to be owed money. It is then up to them to prove it. There are ways for your sister to convince herself that the money isn't owed, but it's not easy and risk. Rather, you need to take charge her. Have your attorney write a letter demanding evidence that you owe back child support and/or suing to have the demand invalidated (perhaps via doctrine of laches). Once that is taken care of, your sister can disburse the money.

I would not be messing around with this without an attorney. It shouldn't be horribly complicated, so probably won't become too expensive - and it will certainly be settled faster if you have one. And if your attorney has to sue, make sure to ask for ex to pay your legal expenses.

mistoffolees said:

The way it works is that the executor can only disburse funds if everything is clear and uncontested. If there is a question, they must hold up disbursement (or they can be held liable for any erroneous payments).

ANYONE can claim to be owed money. It is then up to them to prove it. There are ways for your sister to convince herself that the money isn't owed, but it's not easy and risk. Rather, you need to take charge her. Have your attorney write a letter demanding evidence that you owe back child support and/or suing to have the demand invalidated (perhaps via doctrine of laches). Once that is taken care of, your sister can disburse the money.

I would not be messing around with this without an attorney. It shouldn't be horribly complicated, so probably won't become too expensive - and it will certainly be settled faster if you have one. And if your attorney has to sue, make sure to ask for ex to pay your legal expenses.

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Misto, lot of things wrong with that reply.

1. A mere claim is not enough to withhold his right to disbursement, absent more, such as, a levy.
2. Yes, anyone can claim money owed, but, when it comes to determining arrears, it is not creditor's burden to prove money owed (after all, it's impossible to prove a negative 'he did not pay.') Rather, it is obligor's burden to prove he did pay.
3. Laches is not a defense for non-payment of support.
4. No basis for attorney fees to debtor in most arrearage cases, usually.

But, I do agree with you that he should take charge and get an attorney.

OP - when you say there is no order, I presume you mean that there is no order that you owe support arrears? Because, of course, if you mean that there never was an order to pay support in the first place, then you can't owe support arrears and there is no issue. The fact that there is no record of you owing money (by DCSS) does not mean anything.

EnforceSupport said:

Misto, lot of things wrong with that reply.

1. A mere claim is not enough to withhold his right to disbursement, absent more, such as, a levy.

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Wrong.
http://www.executorsresource.com/docs/RoleofanExecutorERWebsite.pdf

Part of the executor's responsibility is to "Examine all creditor and liability claims to determine their validity."

If there is a claim the executor would be insane to disburse money without verifying the validity of the claim. LEGALLY, they are required to do so.

EnforceSupport said:

2. Yes, anyone can claim money owed, but, when it comes to determining arrears, it is not creditor's burden to prove money owed (after all, it's impossible to prove a negative 'he did not pay.') Rather, it is obligor's burden to prove he did pay.

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The creditor must prove that a CS obligation existed. After that, you are correct that the obligor will have to prove that he did pay.

EnforceSupport said:

3. Laches is not a defense for non-payment of support.

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Wrong again.
http://www.lakinspears.com/images/PDFs/LakinSpears_UsingLachesToDefendAgainstChildSupportCollection.pdf
Read the first paragraph. It's not a sure win, but it can absolutely be used.

EnforceSupport said:

4. No basis for attorney fees to debtor in most arrearage cases, usually.

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It's not an arrearage case. If OP shows that he paid in full, then it's a fraudulent claim case - where attorney's fees can be awarded.

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OP -- I realize it's been a "few years", but do you happen to have a copy of the most recent child support order (whether administrative or court) before the children were emancipated?

The reason I ask is because you *might* be able to go back and get record that it's paid off.

Also, in regards to this person laiming you owe them money, did you demand their DOCUMENTED AND SUBSTANTIATED proof?

Did the state close their CS case when the child aged out? How long ago was that? Did ex EVER raise a question about arrears from then until until now?

Misto,

I'm not going to get into the varying degrees of a trustee's duties, both with respect to determining the validity of a claim, nor with their obligation for timely payouts; suffice it to say, we disagree.

However, your statement regarding laches remains incorrect. It is not a defense, under any circumstances, to the non-payment of support owed to the custodial parent. (Your authoritative article was written in 2001 and relied on old law.)

Finally, a claim that arrears are owed is not fraudulent, merely because it is determined to be wrong. It's one thing to prove an obligation was paid and therefore not owed, it's another to prove that the creditor intentionally lied when she said she did not recall having been paid.

meanyjack said:

Also, in regards to this person laiming you owe them money, did you demand their DOCUMENTED AND SUBSTANTIATED proof?

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It is impossibile to prove a negative; therefore, it is impossible to prove that he did not pay. However, he certainly could ask that she specify her exact allegations as to when he did, or did not, pay. Then, hopefully he can present evidence (hopefully by way of documents) to the contrary.

To be clear on this:

California Family Code Section 4502 states:

The period for enforcement and procedure for renewal of a judgment or order for child, family, or spousal support is governed by Section 291.

California Family Code Section 291 states:

291. (a) A money judgment or judgment for possession or sale of
property that is made or entered under this code, including a
judgment for child, family, or spousal support, is enforceable until
paid in full or otherwise satisfied.
(b) A judgment described in this section is exempt from any
requirement that a judgment be renewed. Failure to renew a judgment
described in this section has no effect on the enforceability of the
judgment.
...
(d) In an action to enforce a judgment for child, family, or
spousal support, the defendant may raise, and the court may consider,
the defense of laches only with respect to any portion of the
judgment that is owed to the state.


So, in CA, laches is not a defense (unless the amount is owed to the state.)

Zigner said:

To be clear on this:

California Family Code Section 4502 states:

The period for enforcement and procedure for renewal of a judgment or order for child, family, or spousal support is governed by Section 291.

California Family Code Section 291 states:

291. (a) A money judgment or judgment for possession or sale of
property that is made or entered under this code, including a
judgment for child, family, or spousal support, is enforceable until
paid in full or otherwise satisfied.
(b) A judgment described in this section is exempt from any
requirement that a judgment be renewed. Failure to renew a judgment
described in this section has no effect on the enforceability of the
judgment.
...
(d) In an action to enforce a judgment for child, family, or
spousal support, the defendant may raise, and the court may consider,
the defense of laches only with respect to any portion of the
judgment that is owed to the state.


So, in CA, laches is not a defense (unless the amount is owed to the state.)

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OK. They changed the rules. Thanks.

mistoffolees said:

OK. They changed the rules. Thanks.

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Actually, they changed the statutes, the rules are pretty much the same.

Ahhhhhaaaa. I crack myself up.

(Sorry.)

Wasn't the statute changed to reflect the rules? (As in, to align the code with court decisions.)