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  • child support

    We signed a seperation agreement in 2012 indicating X amount of CS. Then again in 2013. The payor became in CS arrears in both agreements.

    At the time, after numerous requests to his lawyer and by the judge he had not disclosed his financials until late in 2013.

    Can the CS payments and arrears be adjusted retro for overpayment?

    His salary dropped $70,000 in our first year of separation and now is on EI.

  • #2
    Not sure about the adjustments, but if he went on EI in order to avoid payments, you can have your lawyer petition the court to have the amounts assumed (not the right word...it's escaped me right now) based off his previous income. Family courts don't look too kindly on deadbeats.
    If he's capable of earning $70+k/year, but refuses to just so he doesn't have to pay support for your children, they'll make him pay the table amount regardless...and if he fails to do so, he will lose his license, and possibly even wind up in jail.

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    • #3
      I recently had a SC, Im self Rep and he has a lawyer. The judge basically said that it was ok his salary dropped over $70,000 for each of the last two years and that now since he's umemployed and on EI his child support payment is X amount.

      Long story short, he is trying to say now I owe him for over payment CS.

      Am I entitled to another opinion? Im confused.

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      • #4
        I have two kids, one of them is shared and the other remains in my care 100%

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        • #5
          So look at it this way... if his income increased would you be looking for him to catch up on arrears?

          If he over paid he certainly should be paid back, just like if he under paid you should be paid for that. It is a two way street.

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          • #6
            Exactly. The courts will consider what is fair and reasonable in this situation, and it's based off the income, and pretty much set in stone what is to be paid.

            That said, if he quit his job out of spite, and you can prove that he is capable of working and earning a certain salary but is refusing to do so, you can have the court review it and they can still force him to pay the table amount based on what he *could* be making.

            That, though, winds up being a bit of an uphill battle because you have to prove that he's unwilling to work, and you have to prove a state of mind. He can counter with things like, "he got laid off/unable to find acceptable work to his skill set/requires training so he has to go to school".

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            • #7
              Exactly that. If his income went up, you certainly would be looking for the increase and arrears. So if the income went down, should there not be a decrease. If he paid too much then he should be entitled to his money back.

              How can it be said that if he had a job where he earned $70000, lost it due to whatever reason, that he should still pay based on that amount. CS should be adjusted year to year based on the previous year's income, end of story. That is why there is the table!

              Agree with Berner_Faith 100%!

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              • #8
                I think one qualification is this:

                Did the payor ask for a reduction in C/S when their income decreased and did the payee unreasonably withhold consent to the reduction.

                There is some merit to the notion that the payor may not have known they were making less than before, but generally that is unlikely. A person knows when they are making less money than before. That is why it is the payors obligation to notify the payee of changes to their income and adjust c/s accordingly.

                If they don't ask for a reduction at the time their income changes, the payee generally won't be obligated to pay any over payments back, as they had no reason to believe they were getting too much. The payee had no opportunity to correct the matter because they simply didn't know.

                But if the payor notified the payee that their income went down (and not in an intentionally under-employed manner), and the payee refused to consent to an adjustment, then the payee would be responsible for paying the money back.

                Comment

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