over paid child support

[sneakypeat]

State of Indiana / Marshall County

My sister divorced when my niece was 12. Court ordered $65 per week support. Her and her x made a verbal agreement that the support would go up $5 every year on their daughters birthday, which he faithfully paid, but they never informed the court. My niece just turned 17 and her father has decided he is no longer going to pay support. Is there anything she can do???

 

[tigger22472]

I also live in Indiana and have been fighting and fighting to receive my support. Tell your sister to RUSH to the county prosecuter in which her order was granted and let them know what is going on. In my experience it could take a few months before they even get her in for an interview so she needs to act now if she intends to. The big question I would ask at this point is does your sister really need it? She only has one more year probably to have to deal with her ex... is it worth the hassel? My boys are 8 and 11 and I've stopped trying and my ex is over $10,000 behind. SHE basically has to do EVERYTHING. She has to tell them where he works, his address and most likely his SS # and that still might get her no-where.

 

[sneakypeat]

The problem is that he is not behind in his court ordered support. He has OVERPAID according to the court order. She checked with the clerks office and they show him being overpaid by around $2800.

 

[tigger22472]

Sounds to me then that she doesn't have any recourse. She didn't have it done legally so the court order superceeds the verbal agreement. He will be only held accountable until the child is 18 if his overpayment isn't enough.

 

[smh33]

Agree with post...does she really need it? Why has ex suddenly stopped, must be some issue going on...overpay for years willingly and then just stop? Really all depends on the court, the judge. Support due until 18 usually regardless of anything. Support usually goes up as child ages, if suspend due to full payment..a lot would pay life (until 18) support at one time while support obligation is at lowest...this would leave no room for change in circumstances,living,unexpected medical,etc...see what I mean. Have seen judges rule any extra/overpayments, done at payor's will & just added bonus for child...support still due as ordered. Have also seen judge look badly at CP receiving extra support from willing payor for pursuing more...especially when general attitude is that many get none. With only year left, might look greedy or vindictive...just depends on all the factors in case. Good Luck

 

[sneakypeat]

Reason for stop payment, as I understand it, is because daughter (now 17 and has life of her own) does not come to see dad as often as before. Also my sister has become engauged to a man she has been dating for 2 years. Ex is upset that they are now living together and says that with addition of boyfriends income she shouldn't need his money anymore.
My sister has contacted the prosecuter but he is less that eager to do anything and advised her to hire a attorney to pursue the matter (not that it matters, but prosecuter and ex are golfing buddies).

 

[tigger22472]

Again the big question would be is it worth it to your sister? I do not believe in not supporting your children. My boys are 8 and 11 and their father is over 10,000 behind in support. I don't technically need it for they are taken care of with out it and have stopped fighting for it. Your sister only has a year left and since he's technically overpaid she wouldn't even be fighting for a years worth of support. Have her ask herself if it's worth the hassel. If she's doing it to make a point or to cause him problems let her know that she will suffer as much if not more from it.

 

[smh33]

Agree w/ Tigger. Legally does not matter what ex thinks or freq. of visits...state says he must pay $65. My state...once 30 days behind, case is flagged and D.A. serves for court appearance to explain why not paying....if your state same, save time,effort,money and just wait until state pursues issue.
Yes, it matters ex and D.A. tight...everyone will say it doesn't, shouldn't but, we live in the real world. Will she get any 1 on 1 time with the judge to talk about anything?....think the D.A. will have access to the judge aside from the court hearing...heck they may be golf buddies. Is it worth it? Usually they will not count overpays towards future obligation and to do so all of the extra $ paid over the support ordered would have to be proven with documentation...all of it, otherwise court will consider it non exsistant. If ex has paid well this long, why stir the pot...maybe suggest he continue to pay but only the original $65 ordered for this last year...that may make everyone happy.

 

[Grandma B]

Agree w/ Tigger. Legally does not matter what ex thinks or freq. of visits...state says he must pay $65. My state...once 30 days behind, case is flagged and D.A. serves for court appearance to explain why not paying....if your state same, save time,effort,money and just wait until state pursues issue.
Yes, it matters ex and D.A. tight...everyone will say it doesn't, shouldn't but, we live in the real world. Will she get any 1 on 1 time with the judge to talk about anything?....think the D.A. will have access to the judge aside from the court hearing...heck they may be golf buddies. Is it worth it? Usually they will not count overpays towards future obligation and to do so all of the extra $ paid over the support ordered would have to be proven with documentation...all of it, otherwise court will consider it non exsistant. If ex has paid well this long, why stir the pot...maybe suggest he continue to pay but only the original $65 ordered for this last year...that may make everyone happy.

The DA nor anyone else will be flagging his account and serving him for a court appearance. He is not in arrears. He is, in fact, paid 43 weeks ahead.

The overpayment is not considered a gift. If he had given the CP an extra $5/month directly, it would be considered a gift. Since he's paying it to a court which ordered him to pay $65, it accrues as overpayment. It is proven with documentation.

A message to all NCPs and CPs, paying or receiving support, when you have a court order, you can NOT change it either verbally or in writing on your own, not even if you have a written agreement notarized. No change to any court order has any validity unless it is signed by a judge.

If the child has been 17 for more than 9 weeks, he will not be required to make additional payments. If she turned 17 this week, he would owe another 9 weeks at $65, but I seriously doubt that amount would be worth pursuing.

 

[smh33]

Unfortunately it all depends on how your state's support system works thier program Grandma B.

As in my state...you can pay the entire life obligation of support when the child is 2 but, guess what...your order says the support program will receive $x each month, bi weekly,whatever...

If your payment is not made, your obligation is not considered fullfilled regardless of what you have already paid and how much.
you could pay 2 months at once & next month although monies paid, there is no record of a payment for the 2nd month and it is automatic that a summons is sent out. Yes it all works out...usually but, it does depend on the judge and I have witnessed in person a judge order that extras paid and I quote,"see it as a bonus, a little extra you provided for your child."

Also, the brutal reality is that he has quite actually probably not overpaid according to support guidelines. Cost of a child is presumed to increase with age and more than $5 a year.

 

[Grandma B]

This says it all

The problem is that he is not behind in his court ordered support. He has OVERPAID according to the court order. She checked with the clerks office and they show him being overpaid by around $2800.

 

[smh33]

As I said..one can be overpaid but, depending on system is set up...office which receives support payments have order showing $65 due each month. If that office / dept. does not cross reference the account/case, know what...it shows up as a $65 payment not made that month, not entered in system for that case number. The clerks one calls to get a child support case's account activity are not nec. the clerks that process the payments..if payments are even processed in the same city.
"Clerks office showed him overpaid"...last time I checked the judge out ranks anyone in the clerk's office and has the final say. Think that actually says it all.

 

[sneakypeat]

Thank you for your input one and all. This is sneakypeat's sister. No, it is not worth the trouble. My ex was doing this to try to keep control of me and my daughter but his attempt has backfired, in a big way. My daughter has played the trump card that no one even knew she had. Last week she went to see her father and confronted him about the child support issue and explained to him that I had been putting every cent of his child support money for the past 2 years into a account so she could go to Europe with her 3 girlfriends when she graduates. He told her that was not his problem and that she should get the money from my "rich boyfriend" if she doesn't have enough. My boyfriend and I have told her we will give her the $500 she will need as a graduation gift. She chose that moment to ask my boyfriend if he will adopt her when we get married. I hate to think how my ex is going to react to this but it brought tears to our eyes (Paul & mine) when she asked.

I have another question. Can Paul adopt her after she turns 18? Our wedding isn't planned until after she comes back from europe, and she will be 18 then.

Thank you all once again!

 

[I AM ALWAYS LIABLE]

". . . but it brought tears to our eyes (Paul & mine) when she asked.

My response:

Wow, what a tearjerker ! Is this the sequel to "Terms of Endearment" or what ?

Here's my gift to you, Paul, and your daughter . . .



ANNOTATED INDIANA CODE
TITLE 31. FAMILY LAW AND JUVENILE LAW
ARTICLE 19. FAMILY LAW: ADOPTION
CHAPTER 2. FILING OF PETITION FOR ADOPTION
Current through End of 2001 1st Regular Sess.

31-19-2-1 Adoption of adult; petition; venue; consent; investigation


Sec. 1. (a) An individual who is at least eighteen (18) years of age may be adopted by a resident of Indiana:
(1) upon proper petition to the court having jurisdiction in probate matters in the county of residence of the individual or the petitioner for adoption; and
(2) with the consent of the individual acknowledged in open court.
(b) If the court in which a petition for adoption is filed under this section considers it necessary, the court may order:
(1) the type of investigation that is conducted in an adoption of a child who is less than eighteen (18) years of age; or
(2) any other inquiry that the court considers advisable; before granting the petition for adoption.

HISTORICAL AND STATUTORY NOTES

1998 Main Volume

Formerly:
IC 31-3-1-11.
Acts 1941, c. 146, s. 10.
Acts 1973, P.L.298, SEC.4.

CROSS REFERENCES

Adoption of children,
Generally, see IC 31-19-1-1 et seq.
Investigation and reports, see IC 31-19-2-10 et seq., 31-19-8-4 et seq.

UNITED STATES SUPREME COURT

Adoption, jurisdiction of Supreme Court, review of state court's interpretation of state law, see O'Connell v. Kirchner, U.S.Ill.1995, 115 S.Ct. 891, 513 U.S. 1303, 130 L.Ed.2d 873.


NOTES OF DECISIONS

In general 1

1. In general

Adoption of married woman was valid, though order of adoption provided she should retain her own name instead of taking name of adoptive parent. Scott v. Peters, App.1927, 158 N.E. 490, 87 Ind.App. 1.

Under Rev.St.1881, § 828 [see, now, this chapter], adult as well as infant may be adopted. Markover v. Krauss, 1892, 31 N.E. 1047, 132 Ind. 294.


Good luck to all of you,

IAAL

 

[sneakypeat]

IAAL

Jen say's thank you!