[smaster]

I live in CA. My ex and I have a parenting agreement that states child support ends at age 18 and high school graduation. My ex and I made a verbal agreement in 05' that if I didn't update the custody time percentage when the children decreased visitation with him at age 14 and then stopped visitation at age 16, he would pay the same support amount until all three children graduated high school. My two oldest graduated 4 & 2 years ago. My ex stuck to the agreement and has paid the same support since their graduation. Recently unemployed, he's now seeking to update the order to pay support for only the last minor child and is asking for reimbursement of support paid on the other two children since the date of their graduation. Can a parent who willing continued to pay child support in CA decide to file a motion to modify support and be awarded "overpaid" support for 4 years?

[this8384]

As far as I'm aware, no. He cannot ask the courts to undo the past. If he had an issue with how much he was paying 1, 2 or even 10 years ago, then he should have addressed it at that time.

[jenniepepsi]

If I am understanding you correctly, the agreement you have together was a verbal agreement, and any money he gives that is NOT court ordered is considered a gift and there is nothing the court can do to give it back


Again, this is only if I am understanding you correctly. I might be misunderstanding your question/situation

[cadillac59]

I live in CA. My ex and I have a parenting agreement that states child support ends at age 18 and high school graduation. My ex and I made a verbal agreement in 05' that if I didn't update the custody time percentage when the children decreased visitation with him at age 14 and then stopped visitation at age 16, he would pay the same support amount until all three children graduated high school. My two oldest graduated 4 & 2 years ago. My ex stuck to the agreement and has paid the same support since their graduation. Recently unemployed, he's now seeking to update the order to pay support for only the last minor child and is asking for reimbursement of support paid on the other two children since the date of their graduation. Can a parent who willing continued to pay child support in CA decide to file a motion to modify support and be awarded "overpaid" support for 4 years?

Interesting question.

This case is sort of the opposite of the more common one wherein the parties informally agree to suspend a child support order (i.e. without stipulating to and obtaining a new order to modify) for any number of reasons -- sometimes the kids live with the payor-parent more than anticipated under the existing order for example-- and then later one of them (the support recipient) decides to enforce the existing order and seeks to assess arrearages. This is fairly common and yes, in such a case, arrearages are assessed and owed with interest even though the payor party is crying foul because of the prior (informal) agreement. While a change in the de facto custodial arrangement may constitute a full or partial defense to payment of arrearages in this situation, it is only a defense which the court may or may not, in its discretion, accept. So, it's obviously always important to change an existing order in court whenever the parties want to do something differently.

Here there was a voluntary overpayment. It's the idential situation only in reverse, or so it appears. The rule is that child support orders end as a matter of law (which means you do not need a new order to modify them) once the supported kid turns 18 and graduates from high school. We have a specific code section that says any payments past child support age are owed back to the support payor (this usually occurs as a result of a wage assignment that has not been terminated).

Now, the argument he would be/is making goes like this: if the rule works one way, it should also work the other (sounds logical)!

If I were representing the OP I think I would argue that the voluntary payments were a gift and that nothing in the order precluded either party from paying the other money for the kids that wasn't ordered and hence it was non-refundable. In fact, the code section that governs termination of support (Family Code section 3901) also states that nothing precludes the parties from agreeing to pay more support than he or she is otherwise legally obligated to and that subdivision of the code does not require such agreements to be in writing.

There is no case law in California addressing this specific question, or none that I know of, but my guess would be that a court would not order reimbursement. Modification is always allowable. But I very much doubt any judge in this state would allow reimbursement.

[smaster]

We do have a court order from 2001, which covers child support on all three children. The order states that at 18 years of age and graduation from high school, the support can end on that child. The support order also says we can change any provision upon mutual agreement. While all three children were still minors, we made the verbal agreement not to change the timeshare percents to reflect the actual custody, but to leave it at the 70/30 order from 2001 and instead he would pay me longer (beyond the age of 18 years) - until all three children graduate high school. My youngest is a freshman in high school this year, so the agreement was for him to pay the 2001 support amount until she graduates in 2015. Now unemployed, financial secure and living with his mother for the past 8 years, he wants to stop support and ask for money back on the children that are over 18 and have graduated high school (2 & 4 years ago). I hope this helps to clarify the situation.

[cadillac59]

We do have a court order from 2001, which covers child support on all three children. The order states that at 18 years of age and graduation from high school, the support can end on that child. The support order also says we can change any provision upon mutual agreement. While all three children were still minors, we made the verbal agreement not to change the timeshare percents to reflect the actual custody, but to leave it at the 70/30 order from 2001 and instead he would pay me longer (beyond the age of 18 years) - until all three children graduate high school. My youngest is a freshman in high school this year, so the agreement was for him to pay the 2001 support amount until she graduates in 2015. Now unemployed, financial secure and living with his mother for the past 8 years, he wants to stop support and ask for money back on the children that are over 18 and have graduated high school (2 & 4 years ago). I hope this helps to clarify the situation.

I know exactly what you are saying. He can modify the existing order and only pay support on the youngest child. No problem. Keep in mind your verbal agreement is unenforceable. Agreements regarding child support mean nothing until they are made into court orders and even then they are still modifiable at the request of either party.

I still think you are in good shape on the reimbursement issue. Underpayment or non-payment of a support order is one thing. Giving money to the other parent for the kids that is not ordered (or for any reason) is something entirely different.

[smaster]

We have a court date set for July, but as of May 1st he stopped all child support payments (upon the request of his LL.M. not sure was that means). This put me in a bind because I planned to use the support money to pay my mortgage. I had no advance notice that he was going to discontinue paying support. I thought he had to pay until a new order was signed by a Judge.

[this8384]

He does; he can't just not pay what's been ordered by the court.

Unfortunately for you, this sounds like it's going to turn ugly. He will not be happy when he finds out that he's not going to get his "overpayments" back.

[cadillac59]

We have a court date set for July, but as of May 1st he stopped all child support payments (upon the request of his LL.M., not sure was that means). This put me in a bind because I planned to use the support money to pay my mortgage. I had no advance notice that he was going to discontinue paying support. I thought he had to pay until a new order was signed by a Judge.

What's with the LLM title? (I know of the graduate level degree in tax law, but who uses that after his name?? )

No, the order is the order until it is changed and he is not suppose to stop paying because he anticipates a bit win in court (I think he'll be surprised at his request for reimbursement). Of course he only has to pay for the youngest child and he may not know what that exact figure is (sometimes a divorce decree doesn't break support down per kid so that might be the problem).

[smaster]

It's rather humorous that his attorney (LL.M.) states, "Father request credit for his inadvertent overpayment of support." As if he did it by accident or didn't realize his child turned 18 four years ago:)

[ScottGem]

The way I read what cadillac is saying and the law. He has to continue paying for the third child. He can't stop altogether. So you can request an emergency hearing to order him to resume that payment.

[smaster]

I thought the law said he had to pay support until the order is changed. Can anyone give me a reference to this portion of the family law?

Based on the fact we only had a verbal agreement regarding the extended child support payments, I figured I would loose support for the older two kids (that's college tuition money), but I also planned on getting some amount of support for the 14 year old. I can't say that it will be much since I'm a nurse making a decent salary and he's now unemployed. I probably make 4 times what he's getting in unemployment per month... BUT, if the court looks at debt, I'm in good shape... I have plenty of that:) On the other hand, my ex is tight with his money, stashes it away in his 401K while leaving his college kids to fend for themselves while he lives debt free with his mom. This is why the support money is important to my older kids too, I use it to help support them while they attend college and work part-time.

[ScottGem]

I thought the law said he had to pay support until the order is changed. Can anyone give me a reference to this portion of the family law?

Right and you said this about the order:

We do have a court order from 2001, which covers child support on all three children. The order states that at 18 years of age and graduation from high school, the support can end on that child. .

So he can stop paying on the other two, but not in entirety. So an emergency hearing can force him to continue paying for the 3rd child.

Then the previously scheduled hearing can decide whether he's eintitled to a refund. I think he will be surprised by the court's ruling on that.

[cadillac59]

I thought the law said he had to pay support until the order is changed. Can anyone give me a reference to this portion of the family law?

Based on the fact we only had a verbal agreement regarding the extended child support payments, I figured I would loose support for the older two kids (that's college tuition money), but I also planned on getting some amount of support for the 14 year old. I can't say that it will be much since I'm a nurse making a decent salary and he's now unemployed. I probably make 4 times what he's getting in unemployment per month...BUT, if the court looks at debt, I'm in good shape...I have plenty of that:) On the other hand, my ex is tight with his money, stashes it away in his 401K while leaving his college kids to fend for themselves while he lives debt free with his mom. This is why the support money is important to my older kids too, I use it to help support them while they attend college and work part-time.

He does owe support under any order until it is changed. But it could be retroactively changed from the date the motion was filed forward.

Why don't you post your income (gross) and his income plus timeshare, mortgage interest and property tax deductions, and I'll run a DissoMaster for you on your youngest kid. Like you said support might not be much.

You need to look at the existing order for support and see how it was apportioned for the three kids (it's not an equal apportionment --that is, the total support divided by 3). The youngest child gets more support than older ones, that's the way the child support guideline is designed. As I said before, if it's not broken down per child in the existing order it you may have to look at the DissoMaster imputs used on the old order and run a new support calculation, open up the drop down box and see how much support the oldest is suppose to be allocated, and use that as the number he should be paying until modification. Of course, don't forget he's going to be asking for retroactive modification back to the date the motion was filed so from that period forward the actual number he ends up owing might and probably will (if the judge makes it retroactive) be different.

Like I said before, I don't think he's going to be getting reimbursement for his voluntary payments.

[cdad]

He does owe support under any order until it is changed. But it could be retroactively changed from the date the motion was filed forward.

Why don't you post your income (gross) and his income plus timeshare, mortgage interest and property tax deductions, and I'll run a DissoMaster for you on your youngest kid. Like you said support might not be much.

To OP.. Please DO NOT post the above information in the public forum. Its fine if you want to IM with cadillac59 but please keep the information from public view. Thanks.

[cadillac59]

To OP .. Please DO NOT post the above information in the public forum. Its fine if you want to IM with cadillac59 but please keep the information from public view. Thanks.

You can private message me if you like. I agree it's a good idea not to put too much private info out there on the internet but income figures, timeshare, mortgage interest and property tax info is not anything to be concerned with.

[smaster]

You can private message me if you like. I agree it's a good idea not to put too much private info out there on the internet but income figures, timeshare, mortgage interest and property tax info is not anything to be concerned with.

Cadillac59,
I appreciate your offer to assist me, that's very kind of you! If I know the support amount my ex should have been paying (taking in to consideration his raises over the past 8 years) and what support would be now while he's receiving unemployment benefits, it would help me decide how to proceed. This website is new to me so I don't know how to instant message or send a private message, can you give me some guidance? My clinic secretary just showed me how to quote your message, so I'm learning... I'm not computer illiterate, but a little spoiled in that I have someone to do all that admin stuff for me:)

[this8384]

Cadillac59,
I appreciate your offer to assist me, that's very kind of you! If I know the support amount my ex should have been paying (taking in to consideration his raises over the past 8 years) and what support would be now while he's receiving unemployment benefits, it would help me decide how to proceed. This website is new to me so I don't know how to instant message or send a private message, can you give me some guidance? My clinic secretary just showed me how to quote your message, so I'm learning....I'm not computer illiterate, but a little spoiled in that I have someone to do all that admin stuff for me:)

When you're reading cadillac's posts, left-click his name one time. A drop-down menu will appear and have the option to send him a PM :)

[cadillac59]

Cadillac59,
I appreciate your offer to assist me, that's very kind of you! If I know the support amount my ex should have been paying (taking in to consideration his raises over the past 8 years) and what support would be now while he's receiving unemployment benefits, it would help me decide how to proceed. This website is new to me so I don't know how to instant message or send a private message, can you give me some guidance? My clinic secretary just showed me how to quote your message, so I'm learning....I'm not computer illiterate, but a little spoiled in that I have someone to do all that admin stuff for me:)

Just send a private message if you feel more comfortable with that. There are online support calculators but I don't know how accurate they are and in California at least you really do need a little training on how to use the DissoMaster (it's not as easy as it looks).

[smaster]

Just send a private message if you feel more confortable with that. There are online support calculators but I don't know how accurate they are and in California at least you really do need a little training on how to use the DissoMaster (it's not as easy as it looks).

Cadillac59: I haven't been able to figure out how to private message you the information needed to run a disso. I tried the instructions I was given in the blog and on the help tab if the website, but when I left click on your username the drop down menue doesn't give me the option to private message you. I went to your profile, but there isn't a contact option there either. I tried to set up an email contact in my profile, but after doing so, I went to my profile page and it shows no contact information. Any other suggestions?