§Good morning Nathan,
Wow, your ex has certainly taken advantage of the situation. I'm sorry to hear that.
There is specific statute applicable to your situation in Texas:
Tex. Fam. Code Ann. § 154.012, §154.014.
Section 154.014 applies to excess payments made to child support agencies. It provides that the agency is required to apply the overpayment based upon the expressed intent of the obligor. If the obligor does not express an intent, the statute requires the agency to apply the overpayment as a credit against the obligor's future child support obligation. Section 154.012 provides that an obligor may recover excess child support payments from the obligee after the child support obligation has ended.
Given that it was not your clear intent to make a gift of the overpayment to your ex---and this is clear to the AG's Office as well, your ex is not entitled to keep the money.
However, the problem you are running up on is that the code merely directs that the AG's Office must apply the overage to the your future child support obligations. It does not mandate at what point the AG's Office do this. So, the AG's Office is withing their right to credit it to the back end of the support obligation. However, they do also have the legal right to credit it at an earlier time.
Here is the code language:
§ 154.014. PAYMENTS IN EXCESS OF COURT-ORDERED AMOUNT. (a) If a child support agency or local child support registry receives from an obligor who is not in arrears a child support payment in an amount that exceeds the court-ordered amount, the agency or registry, to the extent possible, shall give effect to any expressed intent of the obligor for the application of the amount that exceeds the court-ordered amount. (b) If the obligor does not express an intent for the application of the amount paid in excess of the court-ordered amount, the agency or registry shall: (1) credit the excess amount to the obligor's future child support obligation; and (2) promptly disburse the excess amount to the obligee. (c) This section does not apply to an obligee who is a recipient of public assistance under Chapter 31, Human Resources Code. Added by Acts 2001, 77th Leg., ch. 1491, § 2, eff. Jan. 1, 2002. Renumbered from V.T.C.A., Family Code § 154.013 by Acts 2003, 78th Leg., ch. 1275, § 2(52), eff. Sept. 1, 2003.
If by the time your child support obligation ends, because of the emancipation of your child, or for any other reason, should there be outstanding over payments remaining, you may file suit against your ex for the over payments and under that circumstance you may recover not only the overpayment remaining but also attorneys fees and costs.
Here is this specific code section:
§ 154.012. SUPPORT PAID IN EXCESS OF SUPPORT ORDER. (a) If an obligor is not in arrears and the obligor's child support obligation has terminated, the obligee shall return to the obligor a child support payment made by the obligor that exceeds the amount of support ordered, regardless of whether the payment was made before, on, or after the date the child support obligation terminated. (b) An obligor may file a suit to recover a child support payment under Subsection (a). If the court finds that the obligee failed to return a child support payment under Subsection (a), the court shall order the obligee to pay to the obligor attorney's fees and all court costs in addition to the amount of support paid after the date the child support order terminated. For good cause shown, the court may waive the requirement that the obligee pay attorney's fees and costs if the court states the reasons supporting that finding. Added by Acts 1999, 76th Leg., ch. 363, § 1, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 1023, § 5, eff. Sept. 1, 2001. Text of section as added by Acts 2001, 77th Leg., ch. 1023, § 6
I'm afraid that there is no way to force the immediate recovery of the overpayment from your ex, nor a way in which to force the AG's Office to credit it earlier as opposed to later in your obligation. I wish I could provide a way for you to force her to disgorge the fraudulently obtained support earlier, but the Texas code is clear as to how the recovery of over payments may be effected.
I wish you the best in 2010.
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