It is the end of the year and for many that is a time to assess one’s financial situation.
For many clients, it seems like child support debt is something they can never “erase.”
Unlike many debts, bankruptcy does not “zero” out your child support debt. In fact, the public policy towards collecting child support is so strong that only taxes and child support arrears are non-dischargeable.
“Arrears” means past due support. Arrears are created when a child support order is made and there have periods of time in which payments were paid partially or not at all. If you owe arrears, you may be able to reduce the principal and interests significantly. Arrears owed to the local child support agency for welfare may only be negotiated downward if certain requirements are met.
I recently had a client whose professional license was not renewed due to a high balance owed to the mother for back due child support and the government. If you owe money directly to the custodial parent, (i.e. non-welfare monies), the arrears cannot be reduced by the local child support agency unless the custodial parent participates and consents to the settlement.
The government is provided under the law, broad enforcement powers to enforce and collect court ordered child support. Due to this, my client could not go abroad for work and needed to zero out his arrears before his license to work was renewed. I worked with all the parties involved: the custodial parent, Department of Child Support Services, its attorney and my client to reach a payment agreed by both the mother and the government.
My client came in and needed to have the problem solved immediately. Getting a case in a court’s calendar in this short amount of time is nearly impossible. So an ex parte proceeding was the avenue I pursued. An ex parte hearing only requires a telephonic notice and one day notice to all parties. But prior to setting the hearing, I had contacted the attorney in charge of my client’s case along with the mother and terms of the payment were finalized.
A Stipulation and Order (“agreement”) was reached and we all proceeded to court to have the judge inquire whether the mother was entering into the agreement without coercion and was advised that once she waives the monies owed, she can no longer revisit the issue. The judge signed the order and my client paid the mother significantly less than what was owed. The government was also paid off and my client’s record is cleared.
It is crucial that the attorney you hire to negotiate on your behalf is trusted by the custodial parent and do not employ any coercive or intrusive tactics. It must be clear that the goal is to be fair to the custodial parent and that an agreement is reached with the child’s best interest paramount.
Notwithstanding the court or the child support agency’s broad powers to insure collection of the arrears, only a custodial parent (non-welfare) has the power to waive arrears. The court is also without power to waive the interest that has accrued. Like my case, if the parent entitled to the support chooses, for whatever reason, to excuse part or all of the support arrears and the interest that has accrued thereon, the attorney must prepare a stipulation and order to be filed with the court for the agreement to be finalized.
Keep in mind that if the arrears have been assigned, defined as “welfare reimbursement” support arrears cannot be legally waived. In certain cases, the Compromise of Arrears Program (COAP), allows a parent to pay less than his or her total child support debt owed to the government. The agency determines if you are eligible and the eligibility requirements are very specific.
There is also a special compromise opportunity for certain military personnel. Current reservists or National Guard that have been activated to military service and deployed may receive a total compromise of any governmental arrears. This is because their current child support was not changed to reflect that their pay in the military is less than their pay in the civil workforce.
The primary objective by both parents and the government in the collection of child support is to determine and set forth what is for the best interest of the child. As such, having an attorney that does not lose sight of this goal insures that the negotiations amongst all parties are effective and fair.
Any inquiries, please call me directly at 310-601-7144 or email me at [email protected]. To receive updates on legal matters, please like our facebook page: https://www.facebook.com/attycarinacastaneda/ or follow us on Twitter: @AttyCastaneda and Instagram: @atty.castaneda.