Failure of Due Process

[srsroundtree]

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

Question 1:
I just recently went to court on a child support hearing where I am being held accountable for being behind on child support. The DOR in MA fails to ever look at actual income when processing someone on being behind and I'm wondering if this is a failure of due process. They go before the judge and report that I'm unemployed, then ask the judge to penalize me and asses interest and penalties on income never earned that they are fully aware of.

question 2:
Recently I had filled a modification to my support order because I was unemployed again and had two of the three children removed being over 23 yrs old. The judge modified my payment and took into consideration that I have been over assessed child support wise by roughly $62,000 dollars more than my income would require that I pay. He set another date for review of more evidence. Then I had another date in court to deal with being behind again. The DOR stated that my recent visit to court ended in a modification and that the information was "Missing from the file". They then went on to ask the judge for a ruling on the matter at hand being behind in child support. The Judge disregarded the fact that there was a previous Judge ruling and ruled that I needed to make a payment by friday and he set my support payment back to the dollar amount prior to the modification past by another judge. How should I proceed to correct this error on the judges part and this misleading of the judge by the DOR?What is the name of your state (only U.S. law)? What is the name of your state (only U.S. law)?

 

[mistoffolees]

There's no failure of due process.

The way the system works is that if your circumstances change to the point where an existing CS order is no longer appropriate, it is up to you to request a change. You didn't do that, so arrears continued to accumulate.

 

[Kenickie]

I feel your pain. The system does not take into account actual income without an immediate and successful modification of a support order, which is ruining people financially across the country. Good luck with it.

It's the result of a pendulum swing apparently. Too many mothers were on welfare because real deadbeats were not paying support. Because of that, we now live with a situation of not being able to modify arrears, by federal law. It's a pretty horrible phenomenon. Your situation exemplifies it: Most obligors/non-custodial parents are surprised by what was possible from the court after it has happened, because what the court does runs contrary to intuitive fairness. Before you know it, you're considered a "deadbeat", and a bunch of cacklers in a legal forum are smacking you down with glee for thinking otherwise.

My thinking is that non-custodial parents need to unite and act in order to change the current laws for the next generation. It's too easy to make good people destitute nowadays. I mean, if you're married, you're allowed to experience tough times without having to owe arrears. Why should being divorced change that?

 

[Proserpina]

I feel your pain. The system does not take into account actual income without an immediate and successful modification of a support order, which is ruining people financially across the county. Good luck with it.

How exactly is the court meant to KNOW unless someone files for such a modification?

Are you hiding the country's crystal ball collection or something?

It's the result of a pendulum swing apparently. Too many mothers were on welfare because real deadbeats were not paying support. Because of that, we now live with a situation of not being able to modify arrears, by federal law. It's a pretty horrible phenomenon. Your situation exemplifies it: Most obligors/non-custodial parents are surprised by what was possible from the court after it has happened, because what the court does runs contrary to intuitive fairness. Before you know it, you're considered a "deadbeat", and a bunch of cacklers in a legal forum are smacking you down with glee for thinking otherwise.

I'm sorry. But does the child need to eat less?

My thinking is that non-custodial parents need to unite and act in order to change the current laws for the next generation. It's too easy to make good people destitute nowadays. I mean, if you're married, you're allowed to experience tough times without having to owe arrears. Why should being divorced change that?

Both parents are expected to provide support - married or not.

 

[Kenickie]

How exactly is the court meant to KNOW unless someone files for such a modification?

Are you hiding the country's crystal ball collection or something?




I'm sorry. But does the child need to eat less?





Both parents are expected to provide support - married or not.

No, the court is not accounting for life happening. There needs to be an ability to modify arrears, because people fall on hard times after divorce just like they do when married. And by not knowing family court procedure like you do, they can end up owing thousands of dollars in arrears over procedural issues, which means that their financial wellness and the good of their children is being ruined over nothing. (And yes, when someone is destitute financially and feels beat down by an unfair system, it affects their ability to be a good parent and, thus, affects the children.)

And I agree. Both parents should provide support, based on what they actually earn. My advice for people who are like-minded on these thoughts is to look for groups online that speak to the concerns of non-custodial parents and to work at trying to change the law.

 

[Proserpina]

No, the court is not accounting for life happening. There needs to be an ability to modify arrears, because people fall on hard times after divorce just like they do when married.

Modify the CURRENT order? Absolutely - and that IS a remedy available.

Modify money owed?

Why?

And by not knowing family court procedure like you do, they can end up owing thousands of dollars in arrears over procedural issues, which means that their financial wellness and the good of their children is being ruined over nothing. (And yes, when someone is destitute financially and feels beat down by an unfair system, it affects their ability to be a good parent and, thus, affects the children.)

Believe it or not most of us are laypersons here, not attorneys. We've gone through "the system" and have had to educate ourselves.

And I agree. Both parents should provide support, based on what they actually earn. My advice for people who are like-minded on these thoughts is to look for groups online that speak to the concerns of non-custodial parents and to work at trying to change the law.

That's why we have the ability to write our congresspersons.



(And obviously, that is NOT what this forum is about)

 

[Kenickie]

Modify the CURRENT order? Absolutely - and that IS a remedy available.

Modify money owed?

Why?





Believe it or not most of us are laypersons here, not attorneys. We've gone through "the system" and have had to educate ourselves.




That's why we have the ability to write our congresspersons.



(And obviously, that is NOT what this forum is about)

Not modify what's owed. Determine what's owed based on actual income to adjust arrears that have built up during times of economic distress. This is altogether reasonable to me.

This forum is about advice. My advice has been reasonable and two-fold, as follows: (1) The OP does not have the ability to modify arrears due to federal law that says you can't. And (2) since he does not have the ability to modify arrears that built up while he faced tough times, and because he probably feels like anyone else in his shoes would feel, like he's in a bind due to procedural jive, he should work to change the system. I'll defer to him to decide who gave better advice. Cheers!

 

[Proserpina]

OP -

It's often very insightful to view the post hx of those who respond

 

[mistoffolees]

No, the court is not accounting for life happening. There needs to be an ability to modify arrears, because people fall on hard times after divorce just like they do when married.

Wrong. There's no reason to modify arrears. You can modify current support orders when there's a change in circumstances. If you take care of your business, there shouldn't be any arrears. Arrears accumulate only when someone fails to take care of things.

If you lose your job, you can go to court immediately to get a new CS order. In most cases, the change will eventually be made retroactive to the date of filing.

I feel your pain. The system does not take into account actual income without an immediate and successful modification of a support order, which is ruining people financially across the country. Good luck with it.

It only ruins people who don't pay attention. If you lose your job involuntarily, you CAN get a successful modification, so the system already does what you're suggesting.

My thinking is that non-custodial parents need to unite and act in order to change the current laws for the next generation.

So what's your solution? It's already pretty easy to change CS if you lose your job. How do you make it even easier without increasing the risk that the child will be unjustifiably short-changed? Please make a specific suggestion rather than simply moaning about injustice (mostly caused by the fact that you never bothered to ask for a modification).

It's too easy to make good people destitute nowadays. I mean, if you're married, you're allowed to experience tough times without having to owe arrears. Why should being divorced change that?

It doesn't. If you experience hard times, you get your order changed.

To use your example, if you're still married and experience hard times, but continue to spend like there was no change, you'll end up in the hole pretty quickly, too. No difference.

Your case is one where you messed it up badly by not showing up for hearings and not taking any appropriate action - and then letting things go on for years without doing anything. That's not the system's problem.

 

[Kenickie]

One person said it's useful to view the past history of someone who's responding. I'd say that's true. Read the history to learn from it.

I'd also say it's useful to look for ad hominem attacks, misdirections, and reductions to absurdity so you can make informed decisions. (For example, look at the above assertion that I was suggesting that children should eat less when I stated that the court should consider the actual income of a child support payor in determining arrears. That's a fine example of an absurdity. An example of misdirection is the reference to my own case, which is neither relevant to this discussion nor accurate.)

For many people, it's hard to see the unfairness of something unless it happens to them or someone they know and care about...

Perhaps the best way to figure out how to proceed for the future is to ask yourself what you would want for your children. In the future, a child of yours may face decisions by a Family Court judge. Would you want them to face an imputed income with unmodifiable arrears? My thinking is that because judges are fallible, just like the rest of us, their decisions about arrears should be modifiable.

 

[CSO286]

No, the court is not accounting for life happening. There needs to be an ability to modify arrears,

No, because it is each party's responsibility to notify CSED when a change in circumstances occurs that could deem a modification necessary.
Each party always retains the right to request that the case be evaluated for possible modification.

You can't have it both ways---saying that the system is too Big Brother and involved in a person life and then getting upset and saying they should know every aspectof what is going on in their life and how it might affect their child support.

Their court orders indicate that they are to report changes in income, employment and residence to CSED and/or the other party within X number of days.

The payors have to maintain a certain level of responsibility in their situation as well.

 

[CSO286]

Not modify what's owed. Determine what's owed based on actual income to adjust arrears that have built up during times of economic distress. This is altogether reasonable to me.

This forum is about advice. My advice has been reasonable and two-fold, as follows: (1) The OP does not have the ability to modify arrears due to federal law that says you can't. And (2) since he does not have the ability to modify arrears that built up while he faced tough times, and because he probably feels like anyone else in his shoes would feel, like he's in a bind due to procedural jive, he should work to change the system. I'll defer to him to decide who gave better advice. Cheers!

As soon as a payor hits said "hard times", they should be requesting modification.

 

[Kenickie]

As soon as a payor hits said "hard times", they should be requesting modification.

Absolutely concur.

But the question is, what should happen if someone doesn't immediately follow that process? Perhaps they don't know the process, or are looking for work and hoping things will turn around before embarking on an exercise with the court and their ex. Suppose they've paid what their state guidelines suggest for their earnings in the interim. But then they find out after-the-fact that it wasn't good enough. Oops! Gotcha! You owe tens of thousands of dollars now because you were lacking knowledge of how the system works!!!

Sorry. I don't want people to have to pay thousands of dollars for the rest of their adult lives over nothing. People should owe support based on what they earned in good faith, not based some legal gotcha. If you agree, push for the ability to modify arrears based on actual, good faith income. Or take the current situation lying down and let your kids potentially suffer as well, in the event that they end up in divorce court some day. Or, be like some of the folks in this forum who think the gotcha is fine, and that it's your fault for not knowing what you didn't know you should have known. In any case, good luck.

 

[Proserpina]

Absolutely concur.

But the question is, what should happen if someone doesn't immediately follow that process? Perhaps they don't know the process, or are looking for work and hoping things will turn around before embarking on an exercise with the court and their ex. Suppose they've paid what their state guidelines suggest for their earnings in the interim. But then they find out after-the-fact that it wasn't good enough. Oops! Gotcha! You owe tens of thousands of dollars now because you were lacking knowledge of how the system works!!!

Sorry. I don't want people to have to pay thousands of dollars for the rest of their adult lives over nothing. People should owe support based on what they earned in good faith, not based some legal gotcha. If you agree, push for the ability to modify arrears based on actual, good faith income. Or take the current situation lying down and let your kids potentially suffer as well, in the event that they end up in divorce court some day. Or, be like some of the folks in this forum who think the gotcha is fine, and that it's your fault for not knowing what you didn't know you should have known. In any case, good luck.

That's very nice.

And completely, utterly irrelevant.

 

[Zigner]

(1) The OP does not have the ability to modify arrears due to federal law that says you can't.

I'd like to see a cite on that "law."