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red2ladyb · May 19, 2008, 09:27 PM

My exhusband died in July 2006 owing $5000 in past-due child support. I had case with Child support enforcement before he died. Tax offset dept withheld his federal refund. Lady from CSE called & told me I would get my money faster if I withdrew my case & let Tax offset mail refund to widow who would then mail me money. I got widow to agree via email to send me a check for the amount held by tax offset dept. Widow refuses to contact me. I have no waying of knowing whether she has received money, but it has been almost 2 years since he died. Widow has put on new roof, and new fence.

Widow did file Injured Spouse with IRS and received $400 refund. I sent demand letter in Dec 2007, no response. I filed claim 30 days ago, still no response. All I want is to pay off 4-wheeler I purchased for our only child after his father passed away. I bought it for him so he could continue to hunting. My brother promised my ex that he would keep taking our son hunting and stuff.

There is no statute of limitations on past-due child support. But he had no estate to file against. I didn't think I had to worry about getting the money from widow, after all, it was going for his son's enjoyment. Not to me for paying medical bills, food, clothing, roof over his head, when his father and wife weren't able to pay!

Does anyone know if I actually have a chance at winning this case? Of course, not legal advice, just wondering. I live in Georgia. My former attorney won't call me back. I think he's not at the office anymore.

Thanks,
Beverly

justcurious55 · May 19, 2008, 10:27 PM

If I were you I would get another attorney to start with.

Synnen · May 19, 2008, 10:50 PM

Get a new attorney.

My guess is that because you withdrew your claim, you're never going to see that money. But--I'm not a lawyer. YOU need to talk to a lawyer about this--and I'd get my money back from the FIRST lawyer if I were you, for not actually DOING anything with your case.

Fr_Chuck · May 20, 2008, 05:59 AM

Yes, the real trouble is that SHE does not owe you the money, so you can only sue his estate money. So there is no case against his widow, only against his money So this is going to be a harder case and I wlll be honest it may well cost more than 5000 to even get to court.

JudyKayTee · May 20, 2008, 06:15 AM

Originally Posted by Fr_Chuck

Yes, the real trouble is that SHE does not owe you the money, so you can only sue his estate money. So there is no case against his widow, only against his money So this is going to be a harder case and I wlll be honest it may well cost more than 5000 to even get to court.

Exactly, it's a claim against the estate so that's where you have to file... and, yes, it could very well cost more than you can collect.

The widow should have listed it as a debt on his probate papers so you'll have to check on that.

stinawords · May 20, 2008, 09:49 AM

As said it isn't likely you will get the money. Withdrawing your claim was bad advice. As said it would have to be a claim against the estate and from what I gather there wasn't much of one and she did right by herself to file the damaged spouce form which is what I've had to advise many to do. If you really want to fight it though you will need a new lawyer and it will be expensive.

JudyKayTee · May 20, 2008, 10:18 AM

[QUOTE=red2ladyb]Widow did file Injured Spouse with IRS and received $400 refund. I sent demand letter in Dec 2007, no response. I filed claim 30 days ago, still no response. All I want is to pay off 4-wheeler I purchased for our only child after his father passed away. I bought it for him so he could continue to hunting. My brother promised my ex that he would keep taking our son hunting and stuff.

Didn't change content, just deleted some paragraphs to make this reply shorter -

If the 4-wheeler was purchased AFTER your ex-husband died based on your brother's promise to your ex that he would keep taking your son hunting you have absolutely not a leg to stand on in that regard - unless, of course, your ex specifically said, "Buy him a 4 wheeler and I'll pay for it." That would, of course, still be an up hill fight.

Otherwise my original advice stands -

reikiwmn · Jun 4, 2008, 07:32 PM

Hmmm, Did the wife have an income? It seems they would be taking the tax returns ,if any, from them to pay back support. My daughters refund got taken because of this since she and her husband filed joint and he owed back support. Seems like something is amiss somewhere here.

stinawords · Jun 4, 2008, 08:46 PM

Originally Posted by reikiwmn

Hmmm, Did the wife have an income? It seems they would be taking the tax returns ,if any, from them to pay back support. My daughters refund got taken because of this since she and her husband filed joint and he owed back support. Seems like something is amiss somewhere here.

Nothing is amiss she did the right thing in order to get her money she filed the injured spouce form along with their taxes. Advise your daughter to do the same next year or her money can be taken as well as his or just tell her to take the taxes to a better accountant and they will make sure all is in order.

red2ladyb · Jun 4, 2008, 08:57 PM

Thanks to everyone for their advice! There was no will, nothing to probate because he put everything in her name when they gave him 2 weeks to live. Nothing to probate. However, she did know the money was owed when he died. His child support debt did not disappear when when he died.

Their tax refund was held back, but I withdrew my case. Apparently, I established that I was owed the money or CSE wouldn't have initiated the tax offset. The widow assumed his debt by agreeing to pay when tax refund was received. If I had not withdrawn my case, she would not have received the tax refund. Therefore, she received money I was entitled to. I did not "give up" my right to child support; I gave up on CSE to collect it. The widow had small income of $14000/yr. Ex-husband was in $70000/yr.

How do you file a claim against his estate when he put everything in her name? He actually believed she would take care of his only child and do the right thing. Can you file against an estate that doesn't exist? Is there a time limit to file?

Thanks!

stinawords · Jun 4, 2008, 09:01 PM

No you can't file against an estate that didn't exist. Did you have something in writing from the widow stating that she would pay back that debt? Unlike many other debts that the surving spouce automatically assumes child support is not one of them.

red2ladyb · Jun 5, 2008, 12:06 PM

Yes, I do! In her response to the court, she claims she never agreed to pay, but I do have it in writing. It 's a reply to an email from her, that says "yes, withdraw your cse case, and I'll pay you when I receive the tax refund" and signed with her name.

ScottGem · Jun 5, 2008, 12:48 PM

If you have proof that she was aware that the tax refund was to go to you and she had agreed, then you have a case against her.

cdad · Jun 5, 2008, 01:45 PM

From what you have said there is no estate to file against. So for now there is little to nothing you can do except maybe write it off on your taxes for the year that the loss was inccured. Im not sure what your trying to imply when you say taking care of his only child ? That may end up being a matter between them later and nothing that you can or should be addressing now. If your child is under 18 then you need to apply for benefits through SSI for them so at least your getting some help.

samsabin · Jun 5, 2008, 04:28 PM

The widow may not have had a legal obligation to pay you anything but when she agreed to pay you I believed she obligated her self .You said you have the emails to prove she agreed I would take her to small claims court

red2ladyb · Jun 20, 2008, 08:54 PM

I WON!! The judge said that my giving up my claim for a faster settlement with the widow was my consideration and the widow wasn't giving up anything, so I won. I found out that child support enforcement sent her a check for $5400, and she returned it to CSE so she could get it back through an Injured Spouse claim. Apparently, someone was talking to her (from CSE) when they weren't authorized to speak to her (confidentiality stuff). Anyway, she got beligerent with the judge after his decision, and mouthed off on her way out of court. The judge called for a deputy to escort my son & I to our car to ensure our safety! The judge told her that if she believed he was wrong and she was right, she should appeal his decision. She said she wasn't going to appeal his decision, but who knows what she'll do. I'm glad I finally have a judgement against her.

I don't know how long it will take her to pay since she already spent the money that was sent to her, but I'll be waiting for the "check in the mail". If she doesn't pay, at least I can file property liens against her house now. She came out of this $900 to the good because my ex-husband owed $5800, she got check for $5400, and she has to pay me $4500.

Thanks to everyone!

ScottGem · Jun 21, 2008, 05:09 AM

Originally Posted by red2ladyb

I WON!!!

I don't know how long it will take her to pay since she already spent the money that was sent to her, but I'll be waiting for the "check in the mail". If she doesn't pay, at least I can file property liens against her house now. She came out of this $900 to the good because my ex-husband owed $5800, she got check for $5400, and she has to pay me $4500.

Thanks to everyone!

Congrats!

But don't wait for a check. Send her a letter immediately giving her a reasonable time frame to fork over the judgement amount (between 2 and 4 weeks). You may want to offer to work out a payment plan if she cannot pay the lumpsum. Advise her that if payment or a payment plan is not received within the stated time frame, then you will be forced to pursue other collection efforts.

stinawords · Jun 21, 2008, 06:25 AM

Congratulations!

red2ladyb · Jul 3, 2008, 04:26 PM

I sent her a demand letter 3 days ago AND NOW, she's hired an attorney who filed an appeal. So now what? The judge told her that is she thought she was right and HE was wrong, file an appeal. So now I've been served that she's (her attorney) filed an appeal. Does this mean the attorney will re-argue the case or the state court will look at the transcript & evidence?

What exactly happens now? Do I need to hire an attorney? Thanks to everyone!

Beverly

ScottGem · Jul 3, 2008, 04:38 PM

That's hard to tell as it will vary from court to court. Generally an appeal is based on an error in law NOT an error in evidence. So the appellate court would look at whether the trial was conducted correctly not the actually facts of the case. But if the original trial was in small claims court the rules may be different.

I don't know if you need an attorney yet. I would make sure you are informed when the appeal will be heard and whether you can attend and/or speak. It may be that only an attorney can present a case to the apellate court.