DOR/CS Question

[FLMom]

State of Florida. BM (me) is NCP, BF is CP.

Settlement agreement in 2004 with regards to CS states that BM will pay BF $XX per month. I was unable to pay in 2005 during a four month period. I should have entered a motion to modify CS amount (downgrade) but didn't.

My employer now takes $$ directly from my wages and deposits it into BF's account. Department of Revenue has never been involved with our case, as settlement agreement states $$ to come directly from employer. The settlement agreement even has BF's bank account # listed for this reason.

In late 2005 BF went to DOR and requested assistance. At this time payments were being made monthly again, although there were arrears of approx $1100. At no time did BF's attorney attempt to contact my attorney to discuss make-up payments.

My only ability to play "catch up" has been now, as my tax return has arrived. My employer is willing to let me give her this amount and have her deposit it, so that I will have a paystub that shows that this amount was paid.

DOR has now entered a "Motion to Intervene". Hearing is in February. My attorney and I both agree that the last thing needed is the monster that is DOR involved in this case.

I am now in the process of doing what I should have done last year, and filing a motion to modify CS. Overnights are so prevalent according to the settlement agreement that BF should actually be paying me CS according to statute guidlines.

In looking over the Motion to Intervene, my attorney made the comment that I would probably never be able to ask for CS from the BF. He stated that BF had asked for financial assistance from DOR, which I can hardly believe he requires. BF makes $22 an hour at his job, owns his own business on the side, owns rental property and has assets of $300k +.

I'm completely new to this whole DOR thing, so maybe I'm not understanding how it works.

We are vehemently going to try to keep DOR out of this case when we go to the hearing in February


Questions:

1) Can DOR step in for a few months of arrears when it is obvious that other payments have consistently been made?

2) Does DOR help anyone, or do they have to show that they have a need for financial assistance?

3) If the answer to #2 is no, and that BF told untruths to DOR to gain assistance, could we possibly use this fraud as the reason DOR should not be allowed to intervene?

4) Would it be better to go ahead and now deposit the arrears $$ into BF's bank account, or wait until after the DOR hearing?

Thanks,
FLMom

[catherine]

BM is NCP is our case and DH is CP.  DH went through CSE/DOR to collect.  We are also in FL.  BM is $8000 in arrears.

(text deleted)

No unauthorized practice of law permitted on this board.

[socrateaser]

>Questions:
>
>1) Can DOR step in for a few months of arrears when it is
>obvious that other payments have consistently been made?

DOR is trying to protect the State's interest in receiving matching dollars from the Federal government for the State's operation of a child support collection unit. You can't stop DOR from intervening, so don't bother trying. Even if you show that the other parent doesn't need assistance and can afford an attorney, DOR represents the state's interests in your child's welfare (of course, this is incredibly socialist and totalitarian, but no one's doing anything to stop it, so oh well).

>
>2) Does DOR help anyone, or do they have to show that they
>have a need for financial assistance?

No requirement for financial assistance. The good news is that the other parent has no attorney-client privilege because he's only a witness and not a party to DOR's intervention. I.E. DOR doesn't represent the other parent -- it represents the State, so unless the other parent retains an attorney, then he doesn't actually have an attorney. This means that you can ask him anything about what DOR may have said (coached) him to say at the hearing, and sometimes, this can result in the State getting it's ass kicked by the judge for violating the duty to not advance false or misleading testimony.

Not saying that any of this will happen, just that your attorney may be over dramatizing the dangers associated with DOR's presence, because it may cost you more to fight them off, than to just deal with them.

>
>3) If the answer to #2 is no, and that BF told untruths to DOR
>to gain assistance, could we possibly use this fraud as the
>reason DOR should not be allowed to intervene?

N/A

>
>4) Would it be better to go ahead and now deposit the arrears
>$$ into BF's bank account, or wait until after the DOR
>hearing?

I'd wait. Maybe there's some negotiating advantage to offering full payment in exchange for something else. At the moment no one knows that you can pay the arrears in full, so they're probably assuming you can't. Let them assume for a while, but don't go spending the money, because it ain't yours.

[catherine]

May I PM you please to learn what I said that was wrong?  

[socrateaser]

>May I PM you please to learn what I said that was wrong?  

The practice of law is:

1) Giving advice about a legal issue in excange for money, or
2) Taking the facts and circumstances of another person, applying the law to those facts, and then providing that person with a conclusion as to how they should proceed.
3) Actually preparing legal documents for legal filing, or presentation at, or appearing at a tribunal on behalf of another, where a legal dispute between parties is to be resolved.
-- except where expressly permitted by law.

#1, #3 are obvious -- #2 is not. Examples:

If someone says, my ex hit me, and you say: the law permits you to obtain a restraining order for domestic abuse, so if you've been hit by your ex, then go to the courthouse and ask for a restraining order.

That is practicing law, because you took a fact, applied law to it, and then rendered a conclusion about the proper legal avenue for redress of the issue.

Now, I'm not suggesting that if someone says that they've been assaulted, that you shouldn't advise them to seek an attorney or call the police. But, when you go beyond that, to discuss how the person should ultimately resolve his/her legal problem you are practicing law.

So, if you tell someone that you've had dealings with DOR, and you tell them what happened to you, then you're ok. But, if you tell them that "no one is lying," about how DOR's legal process works, then you are stating a legal conclusion based upon the facts of the poster that she is afraid that your ex has lied to DOR, and that is practicing law.

Or, if you tell the poster that dealing with DOR is good for the custodial parent because they don't need to hire a lawyer, then you are taking your personal knowledge, i.e., that using DOR was good for you, because it saved you the cost of hiring a lawyer, and you are concluding on the poster's facts, that DOR will be good for the custodial parent in the poster's case.

You don't know what will be good for the custodial parent. It may be that if you knew all the facts, then the right move for the custodial parent would be to negotiate a settlement with the NCP and file it without DOR's involvment.

I don't know that either conclusion is correct, but the point is that I'm the only person who gets to draw conclusions from facts and law on this board, unless another poster who wishes to do so, sends me their ID, including their license # to practice law in some U.S. State, D.C., or Territorial Possession (or a foreign country, if they intend to restrict their answers to matters of the law of their own country).

There are two reasons why I am the only person who gets to do the legal thingy here:


1) I can get in trouble with the government for permitting others to engage in the unauthorized practice of law, because it violates the Code of Professional Conduct.
2) I can get in trouble with the poster if they rely on someone else's advice that I have permitted on the board, if the advice is wrong, and the only way I can execute my duty of competence is to make certain that the poster gets the best possible advice.
3) My experience from other boards is that multiple analyses tends to confuse the posters.
4) My experience with other boards is that multiple conflicting legal analyses tend to promote arguments and those arguments intimidate posters from giving honest facts and seeking honest advice.
5) It's my board.

Now, I admit, that I may not be right in every case, and someone else with better legal knowledge in their jurisdiction may know differently. So, if a poster knows from personal experience, that what I advise is incorrect in the jurisdiction where the adivce is to be applied, then I encourage someone with direct personal experience to post that experience, so I can check my facts. Same for a poster who is an attorney.

However, I cannot avoid #1 or #2, without preventing unauthorized practice of law, and I'm not interested in being sued or suspended, so I must enforce the rules pretty strictly. And, #3 and #4 have demonstrated to me that my approach is better than the approach used in other online forums.

In the past 3+ years, only one person has ever lodged a complaint against me, and that person later changed his mind and decided that he was wrong to have lodged it. And, everyone seems to be pretty satisfied that my advice provides positive results, so I'm not gonna fix what ain't broke!

Anyway, I appreciate your efforts, but you must restrict yourself to statements of personal experience or direct knowledge of facts, and not to analysis of the posters' case, or I must stop you, to the extent reasonably possible.

Ya know, it's funny. I don't talk like this in person. But, as soon as I start writing about the law, I sound all pompous and condescending.

I don't mean to be -- it's just how I write when I'm thinking about legal stuff.

Thanks for your cooperation.