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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?

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Attorney answers 3

Posted

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.

Asker

Posted

June 2011, filed petition for support. August 2011- Judge took his word on income and set temporary support order. October&December 2011- still won't bring proof of income. Jan 2012- non-custodial swore outside of court, that we he told the judge was true, I accepted the check on the terms that his income was correct and that if I found out his income is different, I will still attempt to collect the difference. Feb 2012, no proof of income still. March-April my attorney got him to sign a waiver for an IRS form. June 2012- Judge accepts IRS document and orders new support to be double the amount which also doubled the arrears. Now, 9 months after the final order, he is trying to say that everything from June 2011-Jan 2012 should be zero. I tried to make my point very clear that I was lied to and that I reasonably believed him because he even told the judge. I also tried to emphasize the fact that the agreement was based on arrears for the "false" income and in no way would I have accepted a check if I knew he owed me double. I'm just worried because in the memo it says "Back Child Support Paid in Full"

Posted

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.

Asker

Posted

Thank you for your time and answering my question. I left a comment on the other man's answer giving a little more detail into the situation but mainly, this is what I would like to know: By accepting a check that said "Back Child Support Paid in Full" does that constitute a contract or written agreement? I feel like if it did, it would be voidable because he misrepresented his facts. He lied to the judge on several occasios saying that his income was only X amount. After hearing this for the 3rd time in court, I felt like I could accept the check and if it turned out his income was in-fact more, I could claim that he falsely represented his income. Obviously my hunch was correct and he was hiding his income which is why he was pressuring me to accept. I also made sure to state that I was only accepting that amount in lieu of the back arrears based on his "spoken" income. I clearly stated to him and the judge that it was conditional on what he told me and that if I found out he was making more, I expected to be paid the difference.

Posted

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.

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