How do I get a refund of overpaid child support?
There was a court order to deduct child support and alimony from my paycheck. They messed up and continued to take alimony when it was supposed to end 2 1/2 years ago. They owe me over $6,000. I also think it was unfair for me to have to pay alimony because she started working and made 2X's my income and never reported it to the court. I was too busy working and paying to get a lawyer and take her to court. She also had the best lawyer in town, so there was no use anyway. How do I get my money back? They are still deducting even though I don't owe.
4 attorney answers
It is unlikely that you can get any refund for overpayments, but you MAY be able to get an adjustment to future obligations to compensate in part for the overpayments. Unfortunately, if you are too busy to deal with the issue, it is not going to get any better for you. I suggest you contact a local attorney immediately so he or she can begin taking steps on your behalf to even things out a bit. You can find contact information here on Avvo for an attorney who can help you. Good luck!
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You don't have a claim to reduce alimony or recover any credit or reimbursement from her until or unless you file a petition for modification. If you think she no longer has the same "need", then file immediately. With regard to the overpayment and request for reimbursement from her for the amounts paid to her after alimony should have ended, you need to obtain a copy of the Income Deduction Order and the payment ledger from the clerk to verify the date alimony was support to end was actually on the IDO. If it was or if the date is in your Final Judgment/settlement agreement, you may have a claim against her to recover those funds from her.
Your question relates to modification of alimony. The same general rules that apply to modification of alimony also apply to modification of child support. The bottom line is that you are probably entitled to a modification of both alimony and child support. As you are probably aware, the law is full of exceptions to general rules. The most common reasons for exceptions are based on the facts of your case, Court Orders and Settlement Agreements. When you consult with an experienced attorney the attorney will ask you questions to evaluate the general rules and exceptions.
The following analysis relies upon assumptions because the facts necessary to determine your rights are not stated in your question. There are many exceptions, but they too numerous to discuss in this forum.
ARE YOU ENTITLED TO A MODIFICATION?
GENERAL RULE: One must prove 3 things to modify alimony or child support when the receiving party has a change in employment.
1) There was a substantial change in circumstances;
2) The change was not contemplated at the time of the Final Judgment; and
3) The change is material and permanent in nature.
To satisfy the test for modification you must meet all three parts of the test:
1) Substantial Change: One must assume that your ex-wife was making substantially less than you at the time of the Final Judgment. Otherwise, you would probably not be paying alimony. However, if she was making 197% of your income at that time then 200% is probably not substantial.
2) Not Contemplated: Again, one must assume that you did not contemplate a substantial change in her income.
3) Material and Permanent in Nature: Changes in income are material to the calculation of alimony. Whether or not employment is permanent can be the subject of great contention. Assuming that the employment is permanent then you can get a permanent modification. However, if the employment is temporary then you still may be able to get a temporary modification.
WHAT IS THE EFFECTIVE DATE OF THE MODIFICATION?
GENERAL RULE: The date of a modification cannot be earlier than the date that you file the Petition for Modification.
Modifications are generally only effective as of the date that you file a Petition for Modification. So, the longer you wait to file the Petition for Modification, the longer you delay the right to a modification.
You are probably entitled to a modification of both alimony and child support, but the longer you wait the longer you will be required to pay a higher amount. You should retain an attorney, especially if your ex-wife has an attorney. Schedule a consultation with an attorney to discuss the facts of your case and to review the Court Orders and Settlement Agreements.
The above information is general in nature. In order to obtain more specific and legal advice upon which to base your important decisions, please contact our office and ask to schedule an office conference with John. Phone: 407-542-7800 – Fax: 407-542-7900 – E-mail: [email protected] – Address: John M. Iriye, Esq., 1812 Town Plaza Court, Suite 200, Winter Springs, Florida 32708.
If I understand your question, your employer continued to take out alimony payments long after your obligation ended. You may have a cause of action against your employer. Unfortunately, the law is not always "fair" and if a situation changes, such as your spouse's income changing, you do have the burden of proving that there is need for a modification. If you don't move forward when you discover the need for the change then you risk over payments. Generally, you can not seek a modification retroactively, so you need to speak with an attorney as soon as possible to ensure you don't continue to overpay.
Please note that THESE COMMENTS ARE NOT INTENDED AS LEGAL ADVISE and are for informational purposes only. This response does not create any attorney-client relationship and is based on limited information. A full review of additional facts might change the answer, therefore you should not rely on this answer as legal advise. I recommend that you consult with an attorney who can review your case in detail, understand the specifics of your claims, and protect your interests before you take any actions.