Your Child - Your Divorce

By STACEY ALATZAS 

You’re owed child support, but the money isn’t coming. What can you do? Experts say successful child support collections are on the rise thanks in part to stronger laws and an increase in the number of resources available to parents. Many of these resources can be found at the federal Office of Child Support Enforcement’s Web site: (http://www.acf.hhs.gov/programs/cse/extinf.html).    

“There has been a dramatic improvement in the past 20 years,” says Geraldine Jensen, founder of the Association for Children for Enforcement of Support and the author of “Child Support: A Complete Reference.” “The biggest one is collecting child support through income withholding. When they get paid, their child support gets paid. That has literally doubled collections in the U.S.”   

According to the federal Office of Child Support Enforcement, more than 69 percent of child support in the United States is paid through income withholding. According to the office’s 2006 fiscal year report, almost $24 billion in child support payments were collected and distributed, up from $21 billion in 2003. ”If you become educated and know your legal rights, you can guide your case through the system,” says Jensen who served on the U.S. Commission of Interstate Child Support and played a key role in developing and passing child support enforcement laws for paternity establishment, income withholding and federal criminal non support laws.   

Jensen urges parents to use these state and federal government resources to enforce their child support payments.      

STEP 1: Contact your state or Tribal child support agency. 

  
Local agencies can help you make sure you have a legal child support order in effect. These agencies can also help establish paternity, if necessary. You can find your state or tribe’s agency by clicking on the links provided at this federal Office of Child Support Enforcement Web page: (http://www.acf.hhs.gov/programs/cse/extinf.html) ”I recommend people use the government because they now have these new tools, income withholding and passport suspension and they can attach commissions and bonuses through automation. You don’t have to wait for a caseworker to do something,” says Jensen, who offers child support collection tips at her website: (http://www.familiesonlinemagazine.com/child-support/troubleshooting-child-support-cases.html)    

STEP 2: Supply the agency with all the information that can help your case.
The federal Office of Child Support Enforcement’s Handbook (http://www.acf.hhs.gov/programs/cse/pubs/2005/handbook_on_cse.pdf) offers a multitude of tips for tracking down delinquent child support payments. It recommends parents provide the following information about the non-custodial parent to their local agency: name, address and Social Security number name and address of current or recent employer names of friends, relatives and any organizations he or she might join pay stubs, tax and bank statements or any other information about his or her income and assets physical description or photograph children’s birth certificates if trying to establish paternity, include letters or notes where the alleged father has said or implied that he is the father of the child your child support order, divorce decree, or separation agreement if you have one records of any child support received in the past information about your income and assets information about expenses, such as your child’s health care, daycare, or special needs(…)The federal Office of Child Support Enforcement’s Handbook () offers a multitude of tips for tracking down delinquent child support payments. It recommends parents provide the following information about the non-custodial parent to their local agency: name, address and Social Security number name and address of current or recent employer names of friends, relatives and any organizations he or she might join pay stubs, tax and bank statements or any other information about his or her income and assets physical description or photograph children’s birth certificates if trying to establish paternity, include letters or notes where the alleged father has said or implied that he is the father of the child your child support order, divorce decree, or separation agreement if you have one records of any child support received in the past information about your income and assets information about expenses, such as your child’s health care, daycare, or special needs(…)

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When you are standing at the altar saying “I do” with 300 of your friends and family around you, the very last thing on your mind is the possibility of a divorce in your future. Damn the statistics, it cannot happen to me, you think.

Think again. Recent studies have shown that the divorce rate is almost at the 50% mark for couple being married in the past 5 years. What is the cause of that? Are people being too reckless with their commitments? Do people really think that the love they feel will see them through anything?

The biggest problem leading to divorce is a lack of communication between the partners. It really is a partnership, where each needs to know what the other is doing and thinking on a regular basis, as in daily. You need to make sure that you are both marching to the same drummer with the same goals in sight, both short term goals as well as long term goals, and without that communication, divorce is almost inevitable.

Is this a difficult thing? It should not be, but in today’s world where most households have both spouses working, it can prove to be difficult. When both spouses arrive at home after a long hard day at work, both are tired, perhaps irritable, neither feels like fixing dinner, and communication can often be the last thing on either one’s mind. Yet if that communications does not happen, it is inevitably that the two of you will take different paths, start creating separate goals, and pretty soon you find that divorce is the only viable answer, since your paths have parted so widely that there is little chance your paths will ever rejoin.

Divorce can be a comparatively simple procedure or it can be long and drawn out. It is in your best interests to get a good divorce lawyer. Really? Yes really. If the communications between you and your spouse have broken down to put you on separate paths, you cannot be sure of what your spouse will require or demand in the divorce process. Make sure you do not get hosed in that process, and without a good divorce attorney, that can easily happen before you are even aware of it.

Things can get messy if children are involved or there is a fair amount of capital holdings that were acquired since the wedding day. But even these items can be negotiated and worked out with good divorce attorneys, plus the desire to “just get it over with peacefully” on the part of both spouses.

If divorce is really the best or only option available to you, plan it with the same attention to detail that you used when you planned your wedding. Preparation and a thorough knowledge of what is involved and what can be negotiated is paramount in making sure that you don’t walk away with absolutely nothing. Almost anything is negotiable as far as “who gets what”, but be very clear on what are your rights, what are the rights of your spouse, and how to effectively manage the division of assets, including cash, stocks, and bonds.

About The Author

Child support advocate and enforcement veteran Vanessa Diaz has compiled a list of tips for parents who are considering a divorce for how to best plan ahead for the collection of child support. With government child support enforcement agencies struggling with a backlog of over 15 million cases of unpaid child support, difficulties in collecting the money owed to America’s children are all too common. Planning ahead - before and during a divorce - can help avoid years of frustration.

“In many cases following a divorce, the non-custodial parent starts paying child support, but then stops abruptly. Oftentimes they disappear or find ways to hide income,” Vanessa Diaz, vice president of Supportkids, said. “I had to learn these lessons the hard way in my own life and have since devoted my career to helping others in their child support struggles.”

The following are some important tips from Diaz:

1. Make sure you understand what is in your divorce decree - especially the order for child support.

2. Keep accurate records of all child support received.

3. Be sure you have copies of your children’s birth certificates and a copy of the court order.

4. Knowing how to find the non-custodial parent is a key factor in ensuring that child support payments are made regularly, as is detailed knowledge about income sources. Maintain records about the non-custodial parent, including:

a. Current and/or recent addresses
b. Social security number
c. Current and recent employers
d. Names and contact information of friends, relatives and organizations to which he or she might belong
e. Information about his or her income and assets (pay slips, tax returns, bank accounts, investments, property holdings, etc.).

5. Understand your options for getting help in child support collections should the need arise. Most people start with their government agency. Other options include legal aid, private attorneys, online resources and private agencies.

6. Don’t use your kids as pawns for negotiation with the non-custodial parent. Keep your child’s well-being and the child support issue separate.

7. Educate yourself. The child support laws are different in each state, so be sure you’re familiar with the laws that apply in your case.

8. Advocate for your family. The longer your family goes without the child support owed, the more difficult it will be to collect. Be proactive in seeking out the money that is owed
to your children.

 
Vanessa Diaz is a vice president with Supportkids (and a former client). The company was founded to assist custodial parents who have sought help from government agencies and others but have not received the child support owed them. The company offers a risk-free alternative to custodial parents working to raise their families, often on a single income or by working two jobs. All cases are handled on a contingency basis; the company does not receive payment until child support is collected.

About Supportkids

With clients all across the nation, Supportkids uses on-site investigators and cooperation with state and federal agencies to fulfill its mission to make a difference for families struggling with the issue of unpaid child support. For more information, visit the company’s website at http://www.supportkids.com.

What is a “no fault” divorce?
“No fault” divorce describes any divorce where the spouse asking for a divorce does not have to prove that the other spouse did something wrong. All states allow no fault divorces.

To get a no fault divorce, one spouse must simply state a reason for the divorce that is recognized by the state. In most states, it’s enough to declare that the couple cannot get along (this reason goes by such names as “incompatibility,” “irreconcilable differences,” or “irremediable breakdown of the marriage”).

In some states, however, the couple must live apart for a period of months or years before they can obtain a no fault divorce.

What is a “fault” divorce?
A fault divorce may be granted when the required grounds are present and at least one spouse asks that the divorce be granted on the grounds of fault. Only some states allow fault divorces.

The traditional fault grounds are:

• cruelty (inflicting unnecessary emotional or physical pain) — this is the most frequently used ground for divorce
• adultery
• desertion for a specified length of time
• confinement in prison for a set number of years, and
• physical inability to engage in sexual intercourse, if it was not disclosed before marriage.

Why choose a fault divorce? Some people don’t want to wait out the period of separation required by their state’s law for a no fault divorce. And, in some states, a spouse who proves the other’s fault may receive a greater share of the marital property or more alimony.

What if both spouses are at fault? When both parties have shown grounds for divorce, the court will grant a divorce to the spouse who is least at fault under a doctrine called “comparative rectitude.” Years ago, when both parties were at fault, neither was entitled to a divorce. The absurdity of this result gave rise to the concept of comparative rectitude.

Can a spouse successfully prevent a court from granting a divorce?
One spouse cannot stop a no fault divorce. Objecting to the other spouse’s request for divorce is itself an irreconcilable difference that would justify the divorce.

A spouse can prevent a fault divorce, however, by convincing the court that he or she is not at fault. In addition, several other defenses to a divorce may be possible:

• Condonation. Condonation is someone’s approval of another’s activities. For example, a wife who does not object to her husband’s adultery may be said to condone it. If the wife sues her husband for divorce, claiming he has committed adultery, the husband may argue as a defense that she condoned his behavior.
• Connivance. Connivance is the setting up of a situation so that the other person commits a wrongdoing. For example, a wife who invites her husband’s lover to the house and then leaves for the weekend may be said to have connived his adultery. If the wife sues her husband for divorce, claiming he has committed adultery, the husband may argue as a defense that she connived — that is, set up — his actions.
• Provocation. Provocation is the inciting of another to do a certain act. If a spouse suing for divorce claims that the other spouse abandoned her, her spouse might defend the suit on the ground that she provoked the abandonment.
• Collusion. If a couple lives in a state where no fault divorce requires that the couple separate for a long time and the couple doesn’t want to wait, they might pretend that one of them was at fault in order to manufacture a ground for divorce. This is called collusion, because they are cooperating in order to mislead the judge. If one spouse decides he no longer wants a divorce (before the divorce is granted), he could raise the collusion as a defense.
  But these defenses are rarely used — for a couple of practical reasons. First, proving a defense may require witnesses and involve a lot of time and expense. Second, your efforts will likely come to nothing. Chances are good that a court will eventually grant the divorce, because there is a strong public policy against forcing people to stay married when they don’t wish to be.

Do I have to live in a state to get a divorce there?
All states require a spouse to be a resident of the state — often for at least six months and sometimes for as long as one year — before filing for a divorce there. Someone who files for divorce must offer proof that he or she has resided there for the required length of time. Only three states — Alaska, South Dakota, and Washington — have no statutory requirement for resident status. In other words, being a resident at the time you file is enough.

If you think that your spouse may file for divorce in another state, it may be prudent to spend the money up front and file first — in your home state. Rarely is a divorce settled in one court appearance, and, if your spouse files elsewhere, you could rack up a lot of traveling expenses. Also, any modifications to the divorce decree, including the property settlement agreement and arrangements for child custody and support, must be filed in the original state. This could keep you traveling out of state for years to come, especially if you have children with your spouse.

Can an out-of-state divorce be enforced?
If one spouse meets the residency requirement of a state or country (such as having lived there from six months to a year), a divorce obtained there is valid, even if the other spouse lives somewhere else. The courts of all states will recognize the divorce.

However, decisions a court makes regarding property division, alimony, custody, and child support may not be valid unless the court had jurisdiction over the nonresident spouse. The court gets jurisdiction when the nonresident spouse is personally served with the divorce documents (meaning they are delivered into the person’s hands), or consents to jurisdiction. A nonresident spouse consents to jurisdiction by showing up at a court date or signing an affidavit of service, acknowledging receipt of the filed legal documents. It can also happen if the nonresident spouse abides by the rulings of the court; for example, by paying court-ordered child support.

If you receive documents from a foreign country, you may want to consult an attorney about whether your state court or the foreign court governs the issues. This depends on many factors, such as which particular country is involved, where the parties lived and for how long, and, of course, whether children are involved.

SOURCE: Nolo