in shock

[MK]

Dear Socrateaser --

Hope you can help...I'm pretty desperate for some answers.  I live in CA.

Married for 4 years, he fathered a child 15 years ago (he was 19). Very bad relationship -- after about a year of on-again off-again she took the baby and left the state, not telling him where she was going, no CS was ever court ordered. She got married to her ex-boyfriend, and 2-3 years later, he received a letter from -- he thinks it was the state of Kansas -- telling him the step-father was seeking to adopt the little girl.  He didn't bother to keep the notification -- BIG mistake.

Last year, he made contact with ex GF on the net. She's divorced, didn't go into details, sent pics of his daughter, said her life is a mess, asked for money. He asked for an address and he'd see what he could do. Said she was in UT trying to get back to AZ -- but  gave him a cell phone # and address in MO.

This Saturday, we received a letter from the state of MO saying she has applied for aid in MO and he has been named the father, and he has until 9/15 to submit to a genetic test. Needless to say it was a lousy 3 day weekend, and we couldn't do anything at all.

We have been trying to get a phone consultation with a lawyer -- one finally called today and said, I don't know anything about MO law, will have an attorney contact you from that state within a couple of days. Great -- we only have until 9/15.

1. He believes the girl is his daughter, but paternity was never established; should he go ahead with the genetic test since MO says they will pay for it?

2. He thought all these years she had been adopted by her SD and had no idea where they were. How can he find out if she was ever actually adopted? Will the courts take this into consideration at all?

3. He has no problem paying CS now, if she was not adopted -- one of our biggest worries is that he will be charged for back CS by the welfare depts of who knows how many states -- UT? AZ? MO? We don't even know where she was actually living and may have collected aid. How far retroactive can they make this? (I'm afraid of the answer).

4. During most of the last 15 years, his income was very low -- he's only had a job where he got a decent wage and benefits for about the last 4 years. Will the court only look at what he makes now, or will they look at what he actually earned during that time period? Will they look at my income, or only his?

5. Do we need to do anything to protect our joint property, like our home? Is there even anything we CAN do to protect it? He says he is willing to put it in my name only if it will prevent us from losing it.

6.What is the maximum % they can garnish from his wages? I've read 50%, 65%... Can they freeze his bank account if he is cooperating? If we file a joint tax return, can they take my tax refund as well? Would it be wise to file separately so my refund will remain untouched? Or should we both just decrease our withholding so there IS no refund?

This is long and way too many questions.   I've had a migraine for 3 days over this, and am terrified we will lose our home or be suddenly so deeply in debt we will never be able to crawl out of the hole.  Please help with any advice you can -- anything would be appreciated.

Thanks,
MK

[socrateaser]

>1. He believes the girl is his daughter, but paternity was
>never established; should he go ahead with the genetic test
>since MO says they will pay for it?

This is a toughy. MO support calculations will almost certainly be less than CA, which is the 2nd highest in the nation, behind MA. So, it may be in your interest to take the test and submit to MO jurisdiction in the process. The down side is that you will always have to hire an MO attorney to defend, or go there yourself, but, on balance, the difference in support costs, could be several hundred per month, which is a lot.

If you lived in AZ, where child support is low,  I would tell you to drop the MO notice in the trash, and wait until you received a wage assignment from your employer, so that you could move to quash in an AZ court, and thereby obtain an order based on AZ guidelines.

>
>2. He thought all these years she had been adopted by her SD
>and had no idea where they were. How can he find out if she
>was ever actually adopted? Will the courts take this into
>consideration at all?

If the child was legally adopted, then you are completely off the hook. Finding out, however, would require you to subpoena records from the State where the child was adopted, and since you don't know where that was, you could be sending subpoenas to a lot of places.

>
>3. He has no problem paying CS now, if she was not adopted --
>one of our biggest worries is that he will be charged for back
>CS by the welfare depts of who knows how many states -- UT?
>AZ? MO? We don't even know where she was actually living and
>may have collected aid. How far retroactive can they make
>this? (I'm afraid of the answer).

It's a distinct possibility. Sorry.

>
>4. During most of the last 15 years, his income was very low
>-- he's only had a job where he got a decent wage and benefits
>for about the last 4 years. Will the court only look at what
>he makes now, or will they look at what he actually earned
>during that time period? Will they look at my income, or only
>his?

There are ways to avoid being subjected to the laws of other States regarding retroactive support, and CA will only permit 3 years back support (I think -- might be only one year, now), but the trade off is that you would pay CA support which will be much higher, going forward. It's a big math problem to figure the best move, and I don't have near enough facts, nor do I want to do the math.

>5. Do we need to do anything to protect our joint property,
>like our home? Is there even anything we CAN do to protect it?
>He says he is willing to put it in my name only if it will
>prevent us from losing it.

Well, in a worst-case scenario, a court could order your home sold to pay the back support. And, since you don't know whether this mom has been getting aid from every state in the union, so, it just might be a good idea to change title into your name, until you determine how much you actually owe.

Also, file a Notice of Homestead with the county recorder -- that gives you some additional protections.

Course that puts your husband at some risk, if you guys get into a fight.

>
>6.What is the maximum % they can garnish from his wages? I've
>read 50%, 65%... Can they freeze his bank account if he is
>cooperating? If we file a joint tax return, can they take my
>tax refund as well? Would it be wise to file separately so my
>refund will remain untouched? Or should we both just decrease
>our withholding so there IS no refund?

50% unless you're in arrears for more than 12 weeks, then 65%. Sucks, huh? They can't freeze his assets, unless he's violating the payment order, but they can take your tax refund, so definitely modify your W-4.

[MK]

First of all, thank you so much for your response -- you made my migraine finally go away   This is a horrible situation and has been made worse because we can't get any answers from anyone. The lawyer we were scheduled with for a phone consult wouldn't talk to us because she is from CA and said we needed a MO lawyer, even though a lot of our questions have nothing to do with MO.  The referral process is taking so long that she has agreed to call us back today so we can get some general questions answered -- hopefully she won't give us a stone wall again -- but I think we will need to hire a MO atty to represent us.

His daughter is now 15.  Whether or not she was adopted by another man, her mother is no longer with that man, and his daughter has apparently been living in poverty and in unstable conditions most of her life, and he'd like to do something to help her.  His biggest concern is being so crushed by the financial weight of back payments and interest to multiple states for aid she may have received years ago that he will not be able to do anything to make her life better now.  

You said: "There are ways to avoid being subjected to the laws of other States regarding retroactive support, and CA will only permit 3 years back support (I think -- might be only one year, now), but the trade off is that you would pay CA support which will be much higher, going forward. It's a big math problem to figure the best move, and I don't have near enough facts, nor do I want to do the math."

1. I feel really dumb asking this, but no CS order was ever established, to our knowledge.  If it's established in CA, and the max time for CA to be retroactive is 1-3 years, does that mean if other states contact him regarding welfare aid received in those states, they can only hold him responsible for that same time frame?  

2. Is it a difficult matter to get the house signed over to me alone to protect it, or just a matter of contacting the bank that holds our mortgage?

He's willing to put the house and our two cars solely in my name to protect them from seizure.  No worries there -- I am also divorced, joint custody of my three kids with my ex, and he has seen how fairly my ex and I treat each other.  Ah, we are all older and wiser now.

Better or worse, richer or poorer,
MK    
 

[socrateaser]

>1. I feel really dumb asking this, but no CS order was ever
>established, to our knowledge.  If it's established in CA, and
>the max time for CA to be retroactive is 1-3 years, does that
>mean if other states contact him regarding welfare aid
>received in those states, they can only hold him responsible
>for that same time frame?  

Don't feel dumb. Your problem is incredibly complicated.

Any State that contacts you regarding this issue can only hold you to the law of the State where you reside at the time when the complaint is filed in court. EXCEPTION. If you respond to a complaint issued by the complaining State, for ANY reason other than to object to that State's right to assert jurisdictional authority over you, then you accept the authority of the complaining State. That's why the problem is so difficult. Because of the various issues that could impact you, financially, i.e., varying child support guidelines for different States, and varying periods of retroactivity, you might actually WANT to allow yourself to submit to some other State's authority, because the result under CA law would be worse.

As for the letter you have received from MO, if it is part of an officially filed complaint, and you want to remain immune from MO law, then DON'T respond to the letter, except to say:

"I object to the authority of your State to assert personal jurisdiction over me, as I have no 'minimum contacts' whatsoever with the State of NAMEOFSTATE, nor do the facts and circumstances of this case satisfy any of the jurisdictional requirements of the Uniform Interstate Family Support Act."

Send it certified mail, return receipt. You want proof that they got it. Now, if CA Dept. of Child Support Enforcement sends you a letter to establish paternity, then you should probably take the test (but maybe not, cause there are still possible ways around it all), because as a CA resident you are subject to CA laws.

>
>2. Is it a difficult matter to get the house signed over to me
>alone to protect it, or just a matter of contacting the bank
>that holds our mortgage?

Technically, if you change title, you are in default on your mortgage(s)/trust deed notes. However, people often file Quitclaim deeds to change the ownership of property, and because the county recorder has no legal obligation to notify the bank that title has changed, the banks never find out, until you sell, and then pay off the mortgage to clear title for the new buyer.

So, your husband could file a quitclaim deed transferring all of his right, title and interest in the subject property to you. This would be a gift transfer, and it is still possible that a complaining State could get a court to void the transfer as fraudulent. However, if you haven't actually responded to the notice from MO, and you can testify that the quitclaim was prior to the time that you had any notice of an issue that could impact you financially, then you would not be committing a fraud, because there would be no intent on your part to materially misrepresent the actual ownership status of the property to the impairment of the complaining party. (I know, your eyes are glazing over from the legaleze...sorry, this is the way it is).

Anyway, I suggest that you speak with an MO attorney, and that you ask specifically about "challenging jurisdiction." Most attorneys, want your business, so they may avoid talking about a way to not get any.