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If there is a court order for arrears, can this be settled with just the use of a check that says "back child support in full"?

Corning, NY |

During the support process, non-custodial parent only verbally told judge what he made, judge issued temporary award and arrears based on that number. We settled on the back child support out of court but then found out about his true income months later during the hearing. Income and arrears are now both double. Non-custodial took me to court saying he settled and all of his arrears should be zero. I only took the check on the basis that the income he told us was truthful and accurate- which it turned out not to be. How will the judge react?

Attorney Answers 3

  1. The truth is always the truth, refile the moition and explain the situation, he cannot gain advantage, if you called it a settlement that is different, but the back support was not paid in full, right?

    Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of Massachusetts. Responses are based solely on Massachusetts law unless stated otherwise.

  2. No one knows exactly how the judge will react, but he/she certainly may inquire further into his finances.

    You may be able to request that the Court compel him to swear to and notarize a Financial Disclosure Affidavit, which will serve as his sworn testimony that everything he says is true and accurate. Lying on a Financial Disclosure Affidavit garners very stiff penalties.

    I highly recommend discussing this situation with a New York domestic relations attorney in a confidential forum as the Affidavit is a complicated document and mistakes may have far-reaching consequences.

  3. We you say the "arrears are now double," this implies the order was in fact adjusted to reflect a new nuber on the arrears. Ideally, you could have endorsed the check "under protest" or "with reservation" & then cashed the check anyway. You will need to explain why you cashed the check with his notation & then its discretionary with the Magistrate as to whether to rule that the arrears would be zero. My inclination is to say the Magistrate will rule in your favor. That said, it behooves you to schedule a consultation with a Child Support lawyer in your area.

    * If you found my answer to be helpful, or the "best answer," please feel free to mark it accordingly.

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