I left home 10/07 and made payments in lieu of support (under verbal agreement), without an agreement or filing for divorce, until the eX filed in 4/08 (I had offered an MSA but it was never discussed or agreed upon). I continued to pay the mortgages on the home in lieu of support until 12/08 when we still had not reached an agreement with the X and her lawyers. With no order in place I simply stopped all payments to mortgage holders.

She filed an OSC and an order was finally entered in court on 3/17/09 for retroactive CS back to 4/08 and Spousal back to 11/08. If you add up all I paid from 4/08 to the present I have overpaid that court order by $4,500 and will continue to over pay until my Withholding order is updated.

Question - How do I get the $4500 back or credited against future support? My son turns 18 in July so Aug payment will be lowered by my own filed IWO... my daughter is 14.

Thanks

You probably don't. A written Order supersedes an oral agreement. In my area these "side deals" are considered gifts. If you are ordered to pay $X a month and instead, for example, pay the mortgage you are still legally responsible for the $X and the balance is considered to be a gift, a non-returnable gift, in fact.

You can try to get the matter heard (again) but I don't think you will be successful.

I understand that... I've overpaid the retroactive order by over $4500 just by making monthly payments... the retro order could just as easily been for more than I paid but it wasn't... No side deal... I paid X per month under the assumption this was support.
If I'd been paying $2100/mo and was order to pay $1500 then I over paid, no? Do this for 6 months and I have an excess $3600 balalnce in support paid. Then I adjusted it back down to the $1500 so I am now paying what was ordered.

How is this not overpayment of a retro custody order supported by DANDONA v ARALUCE?

The amount of support in the Order is what you owe. I can do the basic math.

Anything not paid in accordance with the Order - the amount, the method of payment - is considered a gift in MY State. I don't know where you are.

If you want to argue case law, then you need to retain an Attorney and have him/her do the research and make the legal argument at the time your Motion is heard.

I do not find DANDONA v ARALUCE to be on point in your situation but I am not in California and am assuming that you are.

I'm in CA and I do have an Attorney arguing for me... Simply trying to get a better picture of the situation...

If there is no order and I pay varying amounts from month to month not knowing what that amount will finally be how can I get no credit for overpaying in one month and get dinged for underpayments when the retroactive order creates both expected payments in the future and as well as a retroactive stream of payments...

How can that retroactive stream of payments be satisfied unless I get credit for all the payments I made that were considered support during the identified period?

The order asked me to pay CS back to 4/08 and SS to 12/08... this was in March of the following year. I made payments during those months that were considered support and wound up being more than the amount ordered. Can I possibly owe more than what the retro order specifies?

Thanks
DJ

When was the original paperwork filed ? Another thing is that part of the reason they aren't giving you credit or full credit for making house payments is because if it had been the family home then your payments would only be good to 1/2 of the payments being made because California is a community property state. But depending on when the home was purchased etc the ownership is TBD ( to be determined ). What I find puzzling is that there are 2 different dates for the child support and spousal support?? Under normal circumstances those are usually requested at the same initial hearing before getting down to the nuts and bolts of a final.

I'm in CA and I do have an Attorney arguing for me.... Simply trying to get a better picture of the situation....

If there is no order and I pay varying amounts from month to month not knowing what that amount will finally be how can I get no credit for overpaying in one month and get dinged for underpayments when the retroactive order creates both expected payments in the future and as well as a retroactive stream of payments...

How can that retroactive stream of payments be satisfied unless I get credit for all the payments I made that were considered support during the identified period?

The order asked me to pay CS back to 4/08 and SS to 12/08... this was in March of the following year. I made payments during those months that were considered support and wound up being more than the amount ordered. Can I possibly owe more than what the retro order specifies?

thanks
DJ

If you pay a mortgage payment on the family residence while your wife and kids live there and you do not, and there is no support order in place, then this is merely a factor the court can consider in making an order retroactive. In other words, the court can decide to make the order effective only from the date you stopped making the mortgage payments and not have it overlap the period you made the house payments. It's totally within the judge's discretion. If the court makes a support order retroactive and it covers a period during which you were paying the mortgage, there's no automatic credit you get. No. Not that it is not possible to have a credit applied, but it is not automatic. Besides, whoever said the amount of the mortgage payment, and the use value of the house exactly equal the amount of support that was owed for that period? That would be an incredible (like 1/1,000,000) coincidence if that were the case.

What you are entitled to is what some call a "Jeffries credit", a reimbursement for one-half of the mortgage payment you paid adjusted for one-half of the use value of the property that applied during the period you made the payments but didn't live in the house. It's not an overpayment of support at all. It's a separate property reimbursement issue is all it is. You are confusing two completely different things. If you are not sure what I am talking about, let me know and I can explain when I have more time.

(nb: So you know, a Jeffries is a sort of Epstein credit and Watts charge combined)

If you pay a mortgage payment on the family residence while your wife and kids live there and you do not, and there is no support order in place, then this is merely a factor the court can consider in making an order retroactive. In other words, the court can decide to make the order effective only from the date you stopped making the mortgage payments and not have it overlap the period you made the house payments. It's totally within the judge's discretion. If the court makes a support order retroactive and it covers a period during which you were paying the mortgage, there's no automatic credit you get. No. That's not the way it works. Besides, whoever said the amount of the mortgage payment, and the use value of the house exactly equal the amount of support that was owed for that period? That would be an incredible (like 1/1,000,000) coincidence if that were the case.

What you are entitled to is what some call a "Jeffries credit", a reimbursement for one-half of the mortgage payment you paid adjusted for one-half of the use value of the property that applied during the period you made the payments but didn't live in the house. It's not an overpayment of support at all. It's a separate property reimbursement issue is all it is. You are confusing two completely different things. If you are not sure what I am talking about, let me know and I can explain when I have more time.

(nb: So you know, a Jeffries is a sort of Epstein credit and Watts charge combined)

Watts do you charge... maybe he needs a new lawyer.. lol

Sorry couldn't resist.

I understand that... I've overpaid the retroactive order by over $4500 just by making monthly payments... the retro order could just as easily been for more than I paid but it wasn't... No side deal... I paid X per month under the assumption this was support.
If I'd been paying $2100/mo and was order to pay $1500 then I over paid, no? Do this for 6 months and I have an excess $3600 balalnce in support paid. then I adjusted it back down to the $1500 so I am now paying what was ordered.

How is this not overpayment of a retro custody order supported by DANDONA v ARALUCE?

In re Marriage of Dandona and Araluce (2001) 91 Cal. App. 4th 1120 has nothing to do with your particular case. Dandona involved a modification of an existing support order and whether the reimbursement provisions of Family Code section 3653(d) for overpayment made under an old but retroactively modified order would be available. The statute had been changed to allow reimbursement when the court made its order in that particular case, which was a change from prior law.

Your case involves retroactive application of an initial support order. There is no modification of any order in your case, only the issue of credits to be applied for payments you made on behalf of your wife.

When a court makes a retroactive support order, which is usually the case with an initial order, it will allow credit for voluntary support payments made before the hearing during the time covered in the retroactive order (I always advise clients to voluntarily pay anticipated support even before the court makes its order since we all know the order will have a retroactive component and create an immediate arrearage unless payments have been previously made). Any obligation you pay on behalf of your spouse that she otherwise should be paying herself post-separation will typically count as a credit toward any retroactive support order and will serve to offset the arrearage created by such an order. Judges will usually recognize and credit those payments (which, among other things, can be mortgage payments, such as in your case). But any payments beyond those that are applied to a retroactive order have to be handled as property reimbursement matters--as Jeffries credits (Epstein credits and Watts charges applied simultaneously) if they pertain to a mortgage payment on a house--and that reimbursement comes at the conclusion of the case, and is discretionary with the court (though most judges treat them as mandatory reimbursements).

If the judge in your case did not specifically allow a credit against the support order for your payments on the mortgage, you will have to file a motion with the court to allow the credit, or (as I would recommend) just bring it up at the conclusion of the case (this is normally not something the other side disputes by the way). Also, as I previously said, any "overpayment" , which is not technically an overpayment of support at all, is reimbursable at the conclusion of the case under a property reimbursement credit. As I mentioned in my first post, I think you have confused two different and distinct concepts because they appear similar.

Hope this answers your question.

Maybe everyone's given up on this thread, but here's an example of how reimbursements and credits might apply with an overlapping support order in a hypothetical like this:

Say husband leaves the house on 1/1/09 and wife and the kid stay behind. Husband pays the monthly mortgage of $2,000 per month but it only has a fair market rental value of $1,500. On 4/1/09 wife files for divorce and also files a motion for child and spousal support. The hearing is held on 6/1/09 and the judge awards $1,500 per month in support (combined CS and SS) effective 4/1/09. What credit does husband get for paying the $2,000 per month mortgage since 1/1/09? Has he overpaid support?

Does husband get credited for the $2,000 paid for April and May? Probably, sure. What about the $500 "overpayment"? That's more problematic but it might be partially reimbursable as a credit at the end of the case.

What about payments made from 1/1- 4/1/09? Would a credit apply for these 3 months? Again, perhaps, but most likely only a partial credit of up to $500/month (the court would likely say husband was just discharging his duty of support for those months he made those payments, a duty he owes irrespective of whether a divorce case is filed).

When you pay jointly owed debt (community debts) with your post-separation earnings (which are your separate property in California) you are entitled to be reimbursed 50% from the other spouse because you have been paying the other spouse's obligation for him or her (this is called an Epstein credit). If you use community property post-separation to the exclusion of the other spouse, the other spouse can charge a use value of 50% (this is called a Watts charge). The reason? Easy: the other spouse, who owns the property too, has been deprived of its use. The two (the credit and charge) can operate together. For example, in this hypo where wife and the kid are using the house but husband is living elsewhere and paying the mortgage he gets both an Epstein credit and can assess a Watts charge (together this is sometimes called a "Jeffries credit"). So the formula looks like this:

1/1/09-6/1/09 husband paid $10,000 toward the mortgage ($2,000 x 5). Thus wife owes him $5,000 in reimbursement for this period. But husband can also charge wife for her use of the house at its rental value of $1,500/month. $1,500 x 5 =$7,500. Half of $7,500 = $3,750. Thus, in this hypo, husband is entitled to reimbursement (a Jeffries credit)from wife of $8,750 ($5,000 + 3,750=$8.750).

Having said all of that, husband still owes a duty of support to wife whether an order is in effect or not. The support order was determined to be $1,500 per month. Thus for the 5 month period in question, husband owed $7,500 in support ($1,500 x 5). If he is entitled to a credit for paying the mortgage of $8,750, from that we would deduct the $7,500 leaving a $1,250 credit husband could probably request at the end of the case. It's not an overpayment of support exactly, but a property reimbursement issue.

Under this hypo, once the $1,500 support order goes into effect 6/1/09, husband would only pay the $1,500 of support to wife and she would have to pay the $2,000 mortgage herself.

This is how California law classically addresses the issues raised by this OP.

Thanks ca-59...
I appreciate the example but now have a twist..

In your example let's say the husband pays $2000 for Jan & Feb but drops to $1000 for the next 2 months and then $1500 for month 5. Total is still $7500. And let's say all parties agree this is in lieu of support. The order is filed in June for $1500 back to January for a total of $7500 through May. Has the $7500 payment stream from the husband covered the retroactively ordered support?

I have 4 separate periods...
1. 10/07 - 3/08: no court order, I had moved out and kept paying about $2500/mo (mort + CS). Total $14708. I assume this to be the Jeffries credits
2. 4/08 - 10/08 I paid $2236/mo and the court orders (Apr 09) retro CS back to 4/08 (her filing date) of $1314. $922/mo overpayment, total $6454 over payment
3. 11/08 - 5/09 the same Apr 09 order adds $238 for SS starting 11/08 and legal fees of $125/mo ($2K total) starting 5/09. I stopped all support payments to mortgage holders as of 12/08 and sent support directly to her. UNDERPAID support by $2713 during these months
4. 6/09 - on... Auto withholding everything ($1314 + $238) except the $125/mo to her legal fees... Net overpayment during defined Support period $3741

The June 09 entry of the mediation report in court changed (lowered) this monthly support amount due to a change in % of time from the 4/09 retro decision. I over pay for June and July by $149/mo until the revised IWO is received by my HR.

We are tyring to understand how these 4 different times work and whether we should argue that all the payments were for support as intended, as mortgage payments or a combination.

Real numbers: Mortgages 1st $1553, 2nd $632. Mortgage total $285K, House value $165K. Rental value $1500/mo. Do you need more info than all that?

Thanks again for the help...
DJ

THE REAL QUESTION...

If support is ordered retroactively and there were payments made that can be considered support... IS THE TOTAL LIABILITY FOR THE ORDERED Time COMPARED TO THE TOTAL SUPPORT PAID... or is it done on a month by month basis?

AS I stated... I stopped paying the mortgage as support and started paying what I thought it would be. If you add all my payments up for the retro period versus what was ordered I am over by $3741. From today on I will pay via IWO what was ordered in the revised Custody order.

Can this support overage be used to cover legal fees, also on the support order, of $2000?

DJ

In your example let's say the husband pays $2000 for Jan & Feb but drops to $1000 for the next 2 months and then $1500 for month 5. Total is still $7500. And let's say all parties agree this is in lieu of support. The order is filed in June for $1500 back to January for a total of $7500 thru May. Has the $7500 payment stream from the husband covered the retroactively ordered support?


Always keep in mind that the court cannot enter a support order for a period before the petition is filed. So, in the hypo I gave, there could be no support before 4/1/09. But assuming the petition were filed on 1/2/09, then in your hypothetical there would be a credit of $7,500 for the period from 1/1/09 to 6/1/09 and that would satisfy the support order of $1,500 per month from January through June 1st. So I think the answer to your question is yes.


I have 4 seperate periods of time...
1. 10/07 - 3/08: no court order, I had moved out and kept paying about $2500/mo (mort + CS). total $14708. I assume this to be the Jeffries credits

Yes, it is a Jeffries credit, but a judge is not likely to allow it, not at least as a full credit, because he or she will say you were only discharging your duty to support your spouse and kids during this time, and that duty exists whether there is a disso petition on file or not. You could make a fancy argument that, since a guideline support order would have been $1,500 during this time, there should be a Jeffries credit for the excess payments, but it is totally up to a judge to agree with this or not. Some might be receptive to the argument, and others not. You might analyze the credit this way: FM rental value of property= $1,500/month. Payments= $2,451/m ($14708 divided by 6= $2,451). Epstein for 6 months= $14,706, Watts charge for 6 months =$9,000. Total reimbursable credit= $11,853 (Jeffries credit). Total support should have been $9,000 ($1,500 x 6=9,000). $11,853 - 9,000= $2,853.

So you could ask for a property credit of $2,853 at the end of the case. That's a reasonable argument.

2. 4/08 - 10/08 I paid $2236/mo and the court orders (Apr 09) retro CS back to 4/08 (her filing date) of $1314. $922/mo overpayment, total $6454 over payment



I would analyze the overpayment this way: $2236 x 7=15,652 (Epstein credit); $1,500 x 7=$10,500 (Watts charge). $15,652 + 10,500= 26,152 divided by 2 =$13,076 total Jeffries credit. Support for period: $1,314 x 7=9,198. $13,076- 9,198= $3,878 Jeffries credit.

So, there are no arrears for this time and a potential property reimbursement credit for $3,878 reserved for trial. That's a monthly average of $544.


3. 11/08 - 5/09 the same Apr 09 order adds $238 for SS starting 11/08 and legal fees of $125/mo ($2K total) starting 5/09. I stopped all support payments to mortgage holders as of 12/08 and sent support directly to her. UNDERPAID support by $2713 during these months

For the last month (11/08) since the support increased by $238, your property credit is only an additional $316 for this month ($544-238=$316--Recall that I said the average monthly property reimbursement credit is $544)

I would say your property credit is $4,194 ($3,878+ 316=$4,194) so far.

4. 6/09 - on... Auto withholding everything ($1314 + $238) except the $125/mo to her legal fees... Net overpayment during defined Support period $3741

The June 09 entry of the mediation report in court changed (lowered) this monthly support amount due to a change in % of time from the 4/09 retro decision. I over pay for June and July by $149/mo until the revised IWO is received by my HR.



We are tyring to understand how these 4 different time periods work and whether we should argue that all the payments were for support as intended, as mortgage payments or a combination.

Real numbers: Mortgages 1st $1553, 2nd $632. Mortgage total $285K, House value $165K. Rental value $1500/mo. Do you need more info than all that?

I think for any months support was underpaid, you will owe that immediately and with interest at 10% even though there might be a potential Jeffries credit, as I described above, that you could assert at trial. You cannot mix and match support that is due with property credits (Epsteins for example). Believe me, the court is just not going to let you do that. Like I said, I think your Jeffries credit is $4,194 but any overpayments or underpayments of support for the periods you were not paying the mortgage but paying directly what you thought support would be cannot be offset against the Jeffries credit, not without an agreement from your wife to that effect.

Compute your support payments and Jeffries credits separately because I can tell you every judge I've ever seen won't let you offset one against the other, which is what I think you are trying to do.

Thanks again...

In you answer though in situation #3, did you forget to add the $2853 from #1 Jeffries credit? So $4191 + $2853 = $7044. Also 11/08 is the first month of $238 increase not the last...

Would it be prudent to argue that the support order in March 09 created a total liability back to April 08 of $25,837 and I paid $28,351, a $2514 Surplus. When I extend the CS back to date of separation the total is $33,721 owed vs. $43,059 paid... $9,338. The difference - $6,824 - then becomes a Jeffries credit since it occurred before the Support Order AND the Order has been satisfied.

We are going into settlement conference and Property Trial at the end of August. With a $100K negative net value on the home aren't the Jeffries credit worthless? Even after all the SP pays for CP, and all the assets are assigned and split, we both have negative balance in the property column. My Jeffries credits simply lower that negative value but I still will not wind up with a cash reimbursement, correct?

Thanks again for the attention and time
DJ

Thanks again....

In you answer though in situation #3, did you forget to add in the $2853 from #1 Jeffries credit? So $4191 + $2853 = $7044. Also 11/08 is the first month of $238 increase not the last...

Would it be prudent to argue that the support order in March 09 created a total liability back to April 08 of $25,837 and I paid $28,351, a $2514 Surplus. When I extend the CS back to date of separation the total is $33,721 owed vs. $43,059 paid... $9,338. The difference - $6,824 - then becomes a Jeffries credit since it occured before the Support Order AND the Order has been satisfied.

We are going into settlement conference and Property Trial at the end of August. With a $100K negative net value on the home aren't the Jeffries credit worthless? Even after all the SP pays for CP, and all the assets are assigned and split, we both have negative balance in the property column. My Jeffries credits simply lower that negative value but I still will not wind up with a cash reimbursement, correct?

Thanks again for the attention and time
DJ

I'm glad I could help.

In you answer though in situation #3, did you forget to add in the $2853 from #1 Jeffries credit? So $4191 + $2853 = $7044.

Yes, you are correct. The two should be added together.

Would it be prudent to argue that the support order in March 09 created a total liability back to April 08 of $25,837 and I paid $28,351, a $2514 Surplus. When I extend the CS back to date of separation the total is $33,721 owed vs. $43,059 paid... $9,338. The difference - $6,824 - then becomes a Jeffries credit since it occured before the Support Order AND the Order has been satisfied.


Nope. I wouldn't be arguing it that way if you were my client.

Let me give you a little background of how a judge would be thinking about allowing credits for child and spousal support by payments made on a mortgage.

As I said before, I think the only credit against a support arrearage you are going to see for payments you made toward a mortgage on a house your spouse and kids were occupying, to your exclusion, will be the amount paid to the extent it satisfies the fair market rental value of the property. Anything paid beyond fair market rental value will be treated as a property credit to be reimbursed later at the conclusion of the case.

So the rule is kind of like this: If you pay debts your spouse should be paying herself from the support that would be ordered, like the mortgage on the house, her car payment, maybe her car insurance, etc. the court will probably allow that as an immediate credit off support if the payments relate directly to the support of the spouse and the children. In other words, the kids need a roof over their heads, their mom needs a car to take them to school; so, if you pay those things on her behalf in lieu of support you should get a credit against a support order. But, what if you paid, for example, a debt on a boat that you and your wife had during the marriage that she has parked in the garage and she has exclusive use of? Any credit against support for that? No way. Why? What's the difference? The difference is the kids need food on the table and clothes on their backs, they don't need a boat in the garage. That's not supporting kids (or your wife) by paying a joint monthly debt on a boat. That might be an Epstein credit and possible Watts charge (again, a kind of Jeffries credit) later that you get adjusted for in the divorce, but you aren't getting a credit against support for paying for that. The same goes for you paying credit card debt you and the wife owe. Sure you get an Epstein later at trial, but no credit against support because paying that sort of debt doesn't serve a support purpose.

So no. I don't think you can simply go back and tally up everything you paid toward the mortgage, whatever the time is you want to use, and deduct from it the total support that was owed and seek a Jeffries credit for the difference. And the reason is your mortgage exceeded the fair market rental value of the house. You have to fine tune the analysis a little better than that. Again I think your credit against support will be capped on a month to month basis by the fair market rental value of the property. Keep in mind, that paying beyond the fair market rental value does not serve a support purpose, as I described above, because your wife and the kids could have easily moved out of the family residence, and rented the same house for its fair market rental value. If you've got a lousy mortgage, or drained all the equity in the house by borrowing excessively on the property during marriage, that's a problem you and your wife have and you're not going to get a credit against support for paying that post-separation.

If in doing your analysis you take into account the use-value of the family residence and limit the credit you are after by that number, whatever it is, you stand a far better chance of getting a judge to allow it as a payment in lieu of support and thus a credit against support. The excess is your property credit (also do keep in mind that a Jeffries credit is not simply a 100% reimbursement for everything you paid--no,no, no. It's a combined Epstein credit and Watts charge--- you take everything you paid, add the rental value of the property for all the months you paid, and divide by 2... this is often less than the total you paid)

We are going into settlement conference and Property Trial at the end of August. With a $100K negative net value on the home aren't the Jeffries credit worthless? Even after all the SP pays for CP, and all the assets are assigned and split, we both have negative balance in the property column. My Jeffries credits simply lower that negative value but I still will not wind up with a cash reimbursement, correct?


Yes, I think you are right about that. Keep in mind, however, that yours is a "negative assets" case so the judge does not have to split the debt equally (to the extent the debt exceeds assets) and can divide the excess debt up as he or she thinks is fair. This is an exception to equal division. Since you paid more of the debt than your wife, maybe you can make an argument that she should be assigned even more of the debt than she would otherwise have to bear, even adjusting for reimbursement credits. I can't say a judge would go along with it but it is something to think about.

Once again thanks...

So I overpay the court order by $10K and still get dinged for a few months when I stopped paying? She dragged this on and on.. She did not file an OSC for Temp support from April 08 thur Feb 09... 10 months later, Why? She had been getting support all along... not until I finally stopped paying did she finally do something, all the while racking up legal fees.

How would you argue this? Not like I'm a deadbeat dad... $43K paid on a $33K support order and still overpaying to this day. The mortgage payments were made3 automatically on the 5th of each month through Bill Pay. Her financial history shows if I paid her directly she'd NOT pay the 2nd mortgage since it only had my name on it (she dumped a vehicle on me after we separated by returning it to the dealer before the end of the lease since I had bought her the van and only my name was on the lease... "Your van is at the dealership" was all I got... cost me $3200 in mileage and remaining payments just to return the van!)

Arguing that my mortgage payments were in fact support should not be too hard as even in her filing decs she describes the payment of the 1st mortgage as support.

Thanks
DJ

Got to ask, Cadillac - how many hours and what would the cost of this be in "real" life?

You have gone above and beyond the volunteer call here, you really have.

Congrats -

Got to ask, Cadillac - how many hours and what would the cost of this be in "real" life?

You have gone above and beyond the volunteer call here, you really have.

Congrats -

Well, I do all of this off the top of my head so it's not that bad, not like I have to grab a book and research anything (the research, if needed, is for paying clients). And I like to give a complete answer if possible. But you can see how technical and detail-oriented family law can be, and tricky as well.

People always complain about the cost of legal services but you can see that it can be fairly time consuming.

Thanks for the comments:)!