Is it legal for a state to hold support?

[alaska81]

So this involves multiple states. Order was done by divorce decree in TN. After the divorce non custodial moved to California, I moved to NC and filed the order in NC for enforcement. Non custodial then didn’t pay for years. There is a significant arrearage of around $65k. There were 4 kids on the original order. Recently the kids have been aging out and no modification of the original order happened (original order was for around $900 a month, no specific amount per child). I have attempted several times to have the order modified and have been unable to because he doesn’t respond to requests for his information to modify. This includes when the older 3 aged out. He is now in Ohio, and for the past 6 months or so has been paying in the order. The youngest is about to age out and he filed the motion to terminate based on that which is fine. But now Ohio refuses to release payments. They are now sitting on around $1200 in wage garnishments from the past several weeks. When I asked they said this is standard due to possibility of overpayment. When I pointed out that he was $65k behind so that was sort of impossible, she said that he has mentioned filing a motion to try to retroactively modify the arrearages based on the older kids aging out and not modifying it at the time. I didn’t think that was even possible. Is it? Because if not they have no reason to hold money that belongs to me. Is there anything I can do to get this released prior to the order being terminated which won’t actually happen for 2 more months?

 

[Zigner]

So this involves multiple states. Order was done by divorce decree in TN. After the divorce non custodial moved to California, I moved to NC and filed the order in NC for enforcement. Non custodial then didn’t pay for years. There is a significant arrearage of around $65k. There were 4 kids on the original order. Recently the kids have been aging out and no modification of the original order happened (original order was for around $900 a month, no specific amount per child). I have attempted several times to have the order modified and have been unable to because he doesn’t respond to requests for his information to modify. This includes when the older 3 aged out. He is now in Ohio, and for the past 6 months or so has been paying in the order. The youngest is about to age out and he filed the motion to terminate based on that which is fine. But now Ohio refuses to release payments. They are now sitting on around $1200 in wage garnishments from the past several weeks. When I asked they said this is standard due to possibility of overpayment. When I pointed out that he was $65k behind so that was sort of impossible, she said that he has mentioned filing a motion to try to retroactively modify the arrearages based on the older kids aging out and not modifying it at the time. I didn’t think that was even possible. Is it? Because if not they have no reason to hold money that belongs to me. Is there anything I can do to get this released prior to the order being terminated which won’t actually happen for 2 more months?

Why shouldn't he get a modification based on the kids aging out?

 

[alaska81]

Why shouldn't he get a modification based on the kids aging out?

I’d be fine with that and was trying to do so but at this point it would be really difficult. Oldest is 23. Then a 22 and a 19. How would they decide how much he owed for those years? Would they just recalculate based on three kids and then two and then 1 based on current income? Would they ask him to submit his past years earnings? Mine were always submitted. I’m just not sure how they would be able to calculate the correct amounts at this point. He also got credit for parenting time all those years and he hasn’t seen the children since 2007 (his choice) and he also hasn’t provided insurance which was ordered, I have. I also had one more child since then. So there are just so many factors involved I don’t know how they’d even begin to fix it now.

 

[alaska81]

Additionally, each time a child aged out the office where I was located sent him a packet asking him for his information so they could modify the order based on a child aging out and he ignored these and never responded.

 

[alaska81]

Truthfully if I run the calculator based on three kids or even 2 kids with the current income and allowing me a credit for the insurance instead of him, and figuring in his 0 days of parenting time and my additional child, he’d actually owe more than the 900 a month up until the time the second oldest aged out a year ago, and then he’d owe only about $75 a month less than what is currently in the order. So he benefited from the numbers never being modified as well because his income has increased and things were never as they were supposed to be based on the initial order. If we recalculate based on kids aging out it also seems fair to take the other changes circumstances into account as well and he’d probably end up with actually more arrearage that way.

 

[Zigner]

Truthfully if I run the calculator based on three kids or even 2 kids with the current income and allowing me a credit for the insurance instead of him, and figuring in his 0 days of parenting time and my additional child, he’d actually owe more than the 900 a month up until the time the second oldest aged out a year ago, and then he’d owe only about $75 a month less than what is currently in the order. So he benefited from the numbers never being modified as well because his income has increased and things were never as they were supposed to be based on the initial order. If we recalculate based on kids aging out it also seems fair to take the other changes circumstances into account as well and he’d probably end up with actually more arrearage that way.

No, that's not the way it works. If you wanted to adjust based on changes in circumstances, then you should have done it. Aging out of the system means he no longer owes support PER THE COURT ORDER.

I get it - he owes you money, but try to be realistic.

As to how it would work...it's just math, and not that difficult.

 

[alaska81]

It is difficult though because the order does not specify a specific amount per child, just that he pays $903 per month. It stated that modifications could happen due to a change in circumstances. A child aging out is a change in circumstances and he failed to do his part to modify the order. Until he did so, does the order not stand as written? It isn’t as simple as just taking 1/4 off the support order each time a child ages out. If you run a calculator for TN with 1 child and then run it again with the same numbers and 2 children it isn’t a 50% increase. So how would they decide at this point what the numbers should have been back then?

 

[alaska81]

Also even if they did just what I said and counted the years since the kids aged out and subtracted $225 per kid per month it still leaves a balance of around $40,000. So there still would be no reason to hold payments now. He literally went years without making a single payment and there vast majority of those years were while there were still 4 kids that were underage.

 

[Zigner]

Yes, I get it...but Ohio is right to hold on to some money until the dust settles. They're not just going to assume that the final number will remain static. Understand that this is the process for every case. They don't have the resources available to research every single matter individually.

 

[Zigner]

It is difficult though because the order does not specify a specific amount per child, just that he pays $903 per month. It stated that modifications could happen due to a change in circumstances. A child aging out is a change in circumstances and he failed to do his part to modify the order. Until he did so, does the order not stand as written? It isn’t as simple as just taking 1/4 off the support order each time a child ages out. If you run a calculator for TN with 1 child and then run it again with the same numbers and 2 children it isn’t a 50% increase. So how would they decide at this point what the numbers should have been back then?

Your original post didn't include the fact that you order was written in an unusual way. I agree that it will be much tougher to figure this out, which is why it's even more important for the court to be involved.

 

[alaska81]

Your original post didn't include the fact that you order was written in an unusual way. I agree that it will be much tougher to figure this out, which is why it's even more important for the court to be involved.

It does say no specific amount per child. It’s been a frustrating situation for me for years because I’ve done my part and even pushed to have the order modified at times and NC told me that without his cooperation there was nothing they could do. Each time one of the kids aged out the NC website updated the number of kids that were subject to the order but not the amount. This guys has managed to get that far behind and never be brought into court for contempt even because NC just didn’t seem interested in doing anything ( my caseworker actually told me at one point that my case was not a priority to them because I had a job and the state wasn’t owed any money on it)

I sort of feel like this is no different than someone trying to modify due to a change in income. It only goes back to the day it was filed, not the day the income changed. He failed to do what he was supposed to by providing his information so they could modify and the consequence is that he owes what he owes. Morally I don’t feel bad about it because if he had provided his information during the multiple times I tried to modify due to changes in my own income (increased) and changes in his parenting time and the insurance, he likely would have been paying more than the $903 a month anyways. If I run the calculator today with 1 child and both of our incomes and zero parenting time and my payment for insurance plus my additional child, it spits out a number of $837, which isn’t much different than what he’s ordered to pay now. If I add the second child back that aged out a year ago it’s actually more than the $903 he is ordered.

But I’m a nice person and planned to forgive a portion of the arrears anyways as long as he continued to make payments on it.

Still though, how can Ohio justify that they are afraid of an overpayment with such a huge past due balance?

 

[Zigner]

It does say no specific amount per child. It’s been a frustrating situation for me for years because I’ve done my part and even pushed to have the order modified at times and NC told me that without his cooperation there was nothing they could do. Each time one of the kids aged out the NC website updated the number of kids that were subject to the order but not the amount. This guys has managed to get that far behind and never be brought into court for contempt even because NC just didn’t seem interested in doing anything ( my caseworker actually told me at one point that my case was not a priority to them because I had a job and the state wasn’t owed any money on it)

I sort of feel like this is no different than someone trying to modify due to a change in income. It only goes back to the day it was filed, not the day the income changed. He failed to do what he was supposed to by providing his information so they could modify and the consequence is that he owes what he owes. Morally I don’t feel bad about it because if he had provided his information during the multiple times I tried to modify due to changes in my own income (increased) and changes in his parenting time and the insurance, he likely would have been paying more than the $903 a month anyways. If I run the calculator today with 1 child and both of our incomes and zero parenting time and my payment for insurance plus my additional child, it spits out a number of $837, which isn’t much different than what he’s ordered to pay now. If I add the second child back that aged out a year ago it’s actually more than the $903 he is ordered.

But I’m a nice person and planned to forgive a portion of the arrears anyways as long as he continued to make payments on it.

Still though, how can Ohio justify that they are afraid of an overpayment with such a huge past due balance?

You do understand that it's possible that the past due balance will change, right? (I'm assuming your answer will be "yes".)
If it's possible for the past due balance to change, do you know by how much? (I'm assuming your answer will be "no".)

Since a change is possible, and since you don't know by how much, then it's theoretically possible for it to be reduced to less than the amount they are holding. Is that likely? Not really, but it is possible.

 

[alaska81]

There is literally no way to bring a balance of $65,000 down to $1200 unless they allowed him a 0 due for several years during that time period. And there would be no reason to bring him to a 0 due for any of those months.
My understanding is that the court doesn’t allow a retroactive modification for this reason. It’s too hard to sort out what should have been due. My feeling is that the court will deny the modification because it was his responsibility to request the modification at the time the circumstances changed.

 

[alaska81]

I should add that none of the arrearages are interest either, it’s all just past due support. None of the states involved have added interest.

 

[alaska81]

Doing the math at $903 a month $65,000 in arrears adds up to 72 months of non payment. In order for that $1200 they are holding to be exceeded they’d have to drop the amount due for each of those 72 months to less than $17. Seems pretty unlikely. In the meantime if this takes months they obviously benefit from holding the funds. Will it be held in an interest bearing account?