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Author Topic: Overpaid CS  (Read 925 times)

TunieV

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Overpaid CS
« on: Apr 20, 2005, 04:13:28 PM »
Greetings!

I am fairly newly married to a man with an existing CS obligation so all of this is new to me.  His ex filed a modification for CS in December 2003 (a week after our wedding) which was finally settled in October 2004. She received $12.00 more a month (!)  It should have been resolved long before but the two parties must have had the only lawyers in the world who were able to request and get more continuances due to "schedule conflicts" than I could believe possible!

Since then I have, obviously, gotten more interested in how all this works and, with my husband's blessing, have gone over all his files on his divorce from the ex, CS status, etc., to acquaint myself better with what can happen in these situations.  I have no children, nor divorces in my past so the court case was a real eye opener for me.  The ex had also remarried and had 2 more children and was divorced again prior to the first hearing on her CS modification.. Not that that matters, just some history.

His wages are now garnished for the CS, despite him having paid himself directly to the Clerk for over 6 years with NO missed payments or arrearage.

In going over everything, I have calculated that he has overpaid her to the tune of about $3000.  Unfortunately, his record keeping left a lot to be desired  and is not as accurate as the printout I received recently from the Clerk's Office.  Using that printout, it shows the total sum paid in CS to date from the beginning of the Order. He does not have all the receipts for every single payment in his files, but the Clerk's Office shows every penny it has received per this CS order and it shows payments that total more than what should have been paid per Court Order, including the recent modification.  I have not called this overpayment to the attention of the Clerk's Office yet because I don't know yet what, if anything, can be done.

I have read that in order to "get back" any overpayment, it would be necessary to sue the ex.  Chances of getting it back from her - slim to zero.

Questions - two of them: (finally):  The CS order is due to end on June 29, 2006 when the son he adopted during marriage to the ex turns 18.  He will be out of high school in May of that year.

1.  Does my husband need to file anything with the Court/Clerk and notify his employer in advance to ensure that CS ends on June 29, 2006?

2.  (a) With regards to the $3000. CS overpayment; is the printout from the Clerk acceptable proof of overpayment?  and (b) If the printout is good enough proof, can we simply notify his employer to stop garnishing earlier than June 29, 2006?  He pays $1100. a month.  Since CS is overpaid by $3000.00, can it not be stopped on or about March 30, 2006 to compensate for the overpayment (about 3 months worth.)?

Thank you for any assistance. This is my first post here.  This site is AWESOME!!


socrateaser

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RE: Overpaid CS
« Reply #1 on: Apr 20, 2005, 04:44:29 PM »
>1.  Does my husband need to file anything with the Court/Clerk
>and notify his employer in advance to ensure that CS ends on
>June 29, 2006?

Generally, you must file a motion for termination of the wage assignment order. If you have evidence proving that the child has reached the statutory age/requirements for support termination, then the clerk will probably issue the termination order without the judge needing to sign it. However, this is jurisdiction specific, and I don't know what State has jurisdiction. You might be able to coax the answer out of the court clerk -- otherwise you'll probably need to consult a local attorney.

>
>2.  (a) With regards to the $3000. CS overpayment; is the
>printout from the Clerk acceptable proof of overpayment?  

It's evidence of the amount paid. It's up to you to reconcile that printout with the court orders and prove that there was an overpayment.

>(b) If the printout is good enough proof, can we simply notify
>his employer to stop garnishing earlier than June 29, 2006?

No.

>He pays $1100. a month.  Since CS is overpaid by $3000.00, can
>it not be stopped on or about March 30, 2006 to compensate for
>the overpayment (about 3 months worth.)?

The only way to accomplish what you want is to file a motion to modify support, on grounds that the amount owed during the last 3 months should be $300, because you have overpaid $3,000. You could get the court to give you credit against each remaining month so that by the time support ends, you will be even.

Of course, if you do this, you open youself up to having support recalculated, and if you are earning more than you did the last time support was calculated, you may find yourself in worse shape than you would have been in had you done nothing at all.


TunieV

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RE: Overpaid CS
« Reply #2 on: Apr 20, 2005, 05:36:34 PM »
Thank you very much for your reply.  My husband is not making more than he was at the time of the last modification (6 months ago) so that would not be an issue.

I will advise him of what you have said and he see if he wants to pursue this.

State of jurisdiction is Illinois and I will check with the Clerk and see what they have to say about terminating the Order when the time comes, if he does not wish to pursue the overpayment, although, at this point, I don't see why he wouldn't want to get his overpayment back if possible. On the other hand, it has gone to the welfare of the child, hopefully, so...   The Clerk's Office has generally been very helpful.

Thanks again.

Miller

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I'm in IL too...
« Reply #3 on: Apr 21, 2005, 07:13:13 AM »
and I know someone that had somehow paid too much CS and the judge did apply that credit and the person was able to stop paying the CS a couple months before the child graduated from high school (the child had turned 18 already).  So, just wanted to let you know that there has been a judge in IL that acknowledged the overpayment in favor of the NCP.

 

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