When a parent doesn’t pay court-ordered child support the amount due keeps adding up every month and is called an arrearage.

Is your child support in arrears? When a parent doesn’t pay court-ordered child support the amount due adds up every month. This is called a child support arrearage.

Sometimes you would like to make the arrearage go away. For example, if you reconciles or child custody changes from one parent to the other, you may think that the child support arrearage should be resolved.

In Harvey v. Marshall, 158 Md. App. 355 ((2004), a father asked the Bureau of Child Support Enforcement (now the Office of Child Support Enforcement or “OCSE”) to extinguish his arrearage when he gained custody of the children.  OCSE said no and the trial court agreed on the basis of Family Law Section 12-104 of the Maryland Code which provides “The court may not retroactively modify a child support award prior to the date of the filing of the motion for modification.”

Family Law Section 10-112 of the Maryland Code lays out circumstances where OCSE may abate or settle child support arrearages for less than the full amount due.  There is no such statutory exception for private parties.  In fact, several cases say parents may not waive or bargain away a child’s right to receive support. See, e.g., Corapcioglu v. Roosevelt, 170 Md.App. 572, 606, 907 A.2d 885 (2006).

Theoretically, a child support arrearage can only disappear when OCSE abates it under Section 10-112.  As a practical matter, we have seen them disappear, perhaps erroneously, in cases with only private parties, too.

 

 

Ask the divorce lawyer

In this post, divorce lawyers from Thyden Gross and Callahan answer your family law questions.

The Dispute

Q: The children didn’t have school today (Friday).  My ex says I have to pick them up at her house.  I say that she has to drop them off to me. Who’s right?

Divorce Lawyer Answer:  First let’s look at the divorce order or separation agreement if you have one.

What the Agreement Says

Q:  Our separation agreement says:  “The father shall have the children on Wednesdays and Fridays from pickup at daycare/school/camp (hereinafter referred to as “school”) or from 8:30 am for any child not attending school that day.”

Divorce Lawyer Answer:  The agreement is not clear. The drafter tried to cram too many thoughts into that one run-on sentence.  It would have been better if the sentence ended with the parenthetical.

The next sentence would read:  “The father will pick up the children from mother’s home at 8:30 am on days when they are not in school.”  Or the mother will drop them off at the father’s house.  What have you been doing so far?

Past Conduct

Q:  On the mornings that I have the kids, but it is my ex’s day, if the kids are sick, I will drop them off at my ex’s.  So on her mornings, when it is my day, she should do the same.

The issue with Fridays is that every two weeks, there is no school on Friday. Teacher development day or something. So I have it worked out with my boss, that I work from home every other Friday so I can watch the kids.  This way, it is good for both of us, I don’t lose wages, and my ex also gets to go to work and not lose wages either.

I will also not pay her lost wages claims. I told her that I will not pick them up today and she’s causing her own wage loss.  I want her to pay for my legal fees as well.

The Solution

Divorce Lawyer Answer:  I agree that you should not have to pay her for lost wages.  And I agree that both of you win and it is therefore best for the children if she drops them off on Fridays.

However, the agreement doesn’t say that, so in the event of a dispute, you either have to reach a mutual agreement or go to mediation or court.  The American Rule applies to legal fees – each pays their own.

You may be able recover past due child support payments some day.

You may be able recover past due child support payments some day. Consider this case.

Toni Anderson of California divorced Donald Lenhart in the early 70s.  Anderson had custody of their 3-year-old daughter, Lane Lenhart. Donald was ordered to pay $160 a month in child support.

“He made the first payment,” Toni said. “I was so excited, I will never forget. I deposited in my account and it bounced.”

Donald moved to Canada and paid nothing for the next 49 years.

“I struggled a lot,” Toni said. “I lived from paycheck to paycheck and I had to take a couple jobs. It was a detriment to my daughter because I really wasn’t there for her.”

Missed Child Support Payments Impacts the Child

Her daughter, now 52 years old, reflects on the negative impact of the past due child support payments.

She said, “It was a challenge for me because mom was always working, always had to support us so she was never around. That was hard.”

Toni discovered that Donald had moved back to the US and was living in Oregon. He owned a house and a boat.

She located her old court papers. She notified Donald that he owed her $153,090 in back child support, interest and attorney fees. Donald has agreed to pay.

Statute of Limitations for Child Support

There is no statute of limitations for child support in California. The Maryland statute of limitations is 3 years to bring a contempt action.  If there is a written agreement under seal to pay child support, you have 12 years from the date the payment is due to sue.  You can also ask the court for a judgment for back child support.  The judgment lasts for twelve years and it s renewable.  It also accrues interest at 10% per year.

 

In a divorce, what you call something can make all the difference in the world. It’s like the wall being discussed by the President. It turns out that the wall may not be a wall after all.

Our President says he will build a wall between Mexico and the U.S., or a fence or metal slats, or a barrier.  Maybe he just means a better security system. Maybe it’s just a symbol or metaphor for an anti-immigration philosophy.  Maybe it’s an imaginary wall.

The President is following the advice of Lewis Carol’s Humpty Dumpty.  “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

It reminds me of the Mark Twain story where Tom Sawyer and Huck Finn were digging a tunnel under a cabin wall to get inside.  Huck wanted to use the shovel that was leaning against the cabin but Tom insisted they use his Bowie knife like the Indians did.

After much digging and little progress, Tom turned to Huck and asked him to hand him the other Bowie knife.

“What other Bowie knife?” Huck asked.

“The one leaning up against the cabin,” Tom replied.

Words make all the difference in a divorce, too. Visitation is more palatable if it is called access or time-sharing or parenting time.  Alimony may be more agreeable if it is called transition payments.

 

 

Wrong Ways to Respond to a Divorce Settlement Offer

Settling your divorce case out of court is almost always better than a divorce trial.  Knowing how to respond to a divorce settlement offer is important.

Many people don’t know how to use principled negotiation techniques to reach a divorce settlement. Here are some examples of the wrong way to respond to an offer:

Give an Ultimatum.

I received a response to a divorce settlement offer last week that was dead on arrival.  It said its terms were “non-negotiable”.  I have never seen that work.  Instead it closes down the settlement discussions.  The same can be said for deadlines pulling the offer, like “You have one week to say yes to this counteroffer or it is revoked forever.”  A lawyer I know expressed a better attitude when he said, “Everything I’ve got is negotiable.”

Respond Indirectly.

If you receive an offer that numbers the issues, like (1) child custody, (2) child support, and so on, don’t start your response by telling me that your spouse won’t agree to a visitation schedule. Respond in the same order, using the same numbers, and propose a visitation schedule that you want.  Save the blame for court.

Throw Out Everything.

I have received more than one letter from opposing counsel that my client‘s offer is ridiculous or unreasonable or unacceptable.   What am I supposed to do with that?  It would be more helpful for them to say which items are unacceptable and propose a counteroffer.

Go Backwards.

The purpose of negotiation to is reduce difference between offer and counteroffer until you reach a settlement.  If you are increasing the difference, you are not going anywhere.  Once you have offered alimony of $2,000 a year, it will be impossible to get your spouse to accept $1,000 a month in the next round of negotiations.

The right way to respond to an offer of settlement is through principled negotiations.  That means you respond specifically and directly only to the items in dispute, state your objections clearly, and propose compromises.

Divorce lawyer Kline liked to be in his office early in the morning before the phones started ringing, clients started filling the waiting room, and the other lawyers started asking him questions.

He turned on the Nespresso machine, poured some flavored creamer into his coffee mug, and punched up the next email that looked interesting. This one was from a father whom Kline had represented in a divorce. The couple had a son together and their child custody battle was a bitter one.

The father was 15 minutes late to pick up the child and the mother had refused to allow the visitation.
“Can she just make up rules like that and change the custody agreement whenever she feels like it?” the father asked.

Kline sipped his hot coffee, watched the creamer swirl in it, and then pecked out this reply on his computer:

“Neither one of you can change the agreement without the consent of the other or a court order. However, there is an implied provision of good faith and fair dealing in every agreement, which means: (a) both of you should be willing to make some reasonable accommodation in scheduling the calls; and (b) both of you should strive to be on time for pickups and dropoffs.”

Kline hit the send button, took another sip of coffee, and scrolled down, searching for another problem in need of a solution.

The Maryland legislature added Mutual Consent as grounds for divorce for couples without minor children in 2015 to allow divorce without a waiting period if the parties had a written agreement.  Section 7-103 of the Family Law Article of the Maryland Code.

Now the legislature has added couples with minor children to the statute so long as (a) a Maryland Child Support Guidelines Worksheet is attached to the Agreement if the Agreement provides for child support, and (b) the court finds the sections of the Agreement with respect to the children are in the best interests of those children.

The law, if not vetoed by the Governor, will take effect October 1, 2018.

I used to argue like my son.  He knows he is right and you are wrong.  He won’t give up until he wins.

I hope he gets over it.  It took me plenty long enough.

I’ve told him about this poem from my childhood:

Convince a man against his will,

He’s of the same opinion still.

People think if they repeat something enough times or talk long enough, you will finally smack your palm against your forehead and say, “Oh, now I understand!”

What you miss when you do this are other ideas and ways of looking at things.  When you can hold your own point of view and respect and listen to another point of view, life is much richer and abundant.

One of my clients was having difficulties dealing with her controlling husband in a divorce.  He was  always dictating times and dates when my client could see or call their child.

Finally my client said “enough” and started pushing back.  She emailed her husband a clear and strong statement of how things were going to be from now on.  When he didn’t respond, she wrote him that she would take his silence as acquiescence.

I call this “What would Helga Do?”  Helga was another client.   She was from Germany.  She had her own business.  In her 70’s she became a ski instructor so she could ski for free.

Helga did not allow a speck of dust to settle in her office.  Her books were balanced to the penny every night.  If she hired you to repair something, you better do it right.

My wife worked for her.   Whenever we are having trouble with someone, like a repairman or other vendor, we say, “What would Helga do?”  She would not put up with bad behavior.

by James J. Gross

The email from the father read, “You handled my divorce 10 years ago.  My wife has custody of my 15 year old son who now wants to come live with me.  Can custody be changed after the divorce?”

“Yes,”  I replied.  “The easiest way to do it is to prepare an Amendment to the Separation Agreement and a Consent Order for the Court which incorporates the Amendment.”

“What is she doesn’t agree?”

“Then we can ask the Court to decide by filing a Motion to Modify Custody.  We will also ask the Court to recalculate child support based on the new custody arrangement.”