Answering Delinquent Child Support Charges in Oakland County
Nov. 25, 2019
In the Wolverine State, less than half of residential parents receive their full child support allotments. Since either Oakland County or the State of Michigan is ultimately responsible for collecting child support, high delinquency rates make politicians look bad. So, child support prosecutors are very aggressive. They often take action after just a few missed payments.
When these adverse actions begin, many non-residential parents believe they have no choice but to pay the entire amount the state demands. But that’s not always the case, and an experienced Oakland County felony child support defense lawyer can lay out your legal options.
What the State Must Establish
It is easy to see why obligors are fatalistic about these matters. The elements of a back child support claim are entirely technical. All that is required is:
Valid Order: That order is nearly always a divorce or modification final order. Additionally, temporary orders and other interim orders are also legally valid.
Proper Notice: Before any court can deprive any person of life, liberty, or property for any reason, the Fourteenth Amendment requires notice and hearing. In almost all cases, the notice must be written.
Unpaid Amount: The only payments which count are the ones processed through the payment portal set up by the state or established in the decree. Generally, obligors never receive credit for informal payments, no matter how much they were.
Since these requirements are technical, the defenses at this point are technical as well. For example, side agreements between the parties are never enforceable in family court, even if they are in writing. Additionally, during the notice process, some overanxious lawyers take illegal shortcuts. For example, if the obligor is difficult to find, a lawyer may skip straight to the substitute service alternative.
There may be other defenses as well, such as impossibility. Family court judges have only recently begun allowing this contract defense in child support matters.
As the name implies, if performance was impossible, nonperformance can be excused. But there is a difference between unwilling to perform, and unable to perform. So, obligors must show the following:
The judge made a mistake when setting the child support obligation,
The obligor pointed out the mistake to the judge, probably by making a motion for a new trial, and
The court nevertheless ordered payments which the obligor could not afford.
Impossibility is easier to establish if there is evidence of incarceration, disability, or another reason the obligor fell behind on payments.
Resolving Child Support Delinquency Matters
Executing a wage garnishment order is often a good way to resolve these matters, provided the obligor has sufficient income left over to meet other obligations and live roughly the same lifestyle. Obligees cannot dispute the amount paid, and obligors pay child support with pre-tax money.
A mixed settlement may be appropriate as well. The obligor pays some of the delinquency in a lump sum, and agrees to a payment plan for the remainder.
These matters often involve motions to modify as well. Many times, the child support amount is borderline too high, but not legally impossible. So, there is a good chance the obligor will either fall behind again or be unable to meet other obligations. A child support reduction is usually appropriate in these situations.
Contact an Experienced Lawyer
If you owe back child support, you may have legal options. For a confidential consultation with an experienced family law attorney in Waterford Township, contact Clarkston Legal. We routinely handle matters in Oakland County and nearby jurisdictions.