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Amber E.
Amber E., Family Law Attorney
Category: Family Law
Satisfied Customers: 1408
Experience:  Experienced practitioner in family law, including divorce, custody, and domestic violence cases.
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My ex-husband fraudulently filed for divorce and child support in 1998, in WA state (where me and my daughter were NOT residing in at the time - we moved in 1996). Thus, WA state is now the tribunal state. I was able to fix the child support order in 2000. Up until that time, for the first 5 years, he paid absolutely no child support, even though he collected dependent pay from the US Army. In the modified child support in 2000, one of the agreements was that I would always claim my daughter on my federal income taxes (and I would not contact the Army). He signed a federal income tax dependency waiver giving me all tax years. In 2009 (9 years later), after trying to get him to pay some of our daughter's orthodontist/oral surgery bill, I tried to open a case in my home state but at the last minute, he filed bogus contempt charges against me claiming I would not allow visitation with his daughter (of course he lied about this as well, which I did prove in court and have evidence to support), and this stopped the modification of the child support order where I live and the order was modified in WA state in October 2009. My child support payments were finally increased but when I received the order in the mail, I realized that the court changed the federal exemption paragraph, allowing my ex-husband to claim our daughter in all subsequent tax years. When I wrote to the WA state court, they informed me that my case was closed and was now being enforced by my home state. I then contacted my ex and reminded him of our agreement and the fact that he was unwilling to help pay medical/dental expenses; he agreed to allow me to continue to claim my daughter on taxes and not to bother him with extra expenses. Travel expenses were not an issue as he never calls or sees his daughter - EVER! The court order expired in May 2012 as she turned 18, per court order and multiple WA state laws. After not hearing from him in 3 years (and after order expired), he filed contempt charges against me in WA state for not signing and giving him Form 8332. The order never stipulated for me to sign and send him Form 8332 and did not stipulate that the mother could not claim daughter. Then of course, we have the matter of our verbal agreement (although the documents that I have from the past clearly show the course of events). I was never served personally, violating my right to due process, WA state lacks jurisdiction, my ADA rights were also violated - the court in WA is completely ignoring state and US laws, as well as case histories. Since the order was terminated in May of 2012 does WA state still have jurisdiction? Also, my home state was suppose to be enforcing the child support order - which is what he was basically asking the court to do by way of contempt - he was not asking for a modification, shouldn't he have contacted my home state about this issue? We had a verbal agreement in place, he purposely waited until I couldn't modify the order as it was expired, other than child support monies due or arrearages, I could not find one law that applies to contempt for me claiming my daughter on my federal income taxes. The court has continued without my presence and I just received paperwork from the last hearing, it orders me to correct my taxes for 2009-2012, send him Forms 8332, and pay his tax bill from 2010 as he filed his income taxes fraudulently and now owes the IRS some of his refund back. Any suggestions? Does he even have a case at this point? Can I open a law suit for violation of my civil rights (there is much more involved then I can go into at this moment)? Thanks!!
Submitted: 1 year ago.
Category: Family Law
Expert:  Amber E. replied 1 year ago.

1. My ex-husband fraudulently filed for divorce and child support in 1998, in WA state (where me and my daughter were NOT residing in at the time - we moved in 1996). Thus, WA state is now the tribunal state.

 

If one spouse lives in-state, then he can initiate a divorce and related actions (e.g. custody, visitation, child support) in that state. However, if the child has not been in the state for six months or more and is not the child's home state, the court will lack jurisdiction on issues concerning the child. Usually this occurs subject to the filing of something by the other spouse to alert the the court of a problem, such as an exception for lack of jurisdiction. I am surprised that your attorney did not raise that issue, or that the court didn't take it up on its own after you advised the judge of it.


2. In 2009 (9 years later), after trying to get him to pay some of our daughter's orthodontist/oral surgery bill, I tried to open a case in my home state but at the last minute, he filed bogus contempt charges against me claiming I would not allow visitation with his daughter (of course he lied about this as well, which I did prove in court and have evidence to support), and this stopped the modification of the child support order where I live and the order was modified in WA state in October 2009. My child support payments were finally increased but when I received the order in the mail, I realized that the court changed the federal exemption paragraph, allowing my ex-husband to claim our daughter in all subsequent tax years. ...he filed contempt charges against me in WA state for not signing and giving him Form 8332. The order never stipulated for me to sign and send him Form 8332 and did not stipulate that the mother could not claim daughter.

 

Contempt is ordinarily defined as the intentional or willful violation of a court order. Therefore, the order will govern whether or not there has been a violation to even analyze. If the final, enforceable order states that the father is to claim the child on the taxes, then it might arguably be contempt for the mother to interfere with that, such as by refusing to sign a form 8332. A question might be raised, however, as to whether he asked that you sign it timely, why he didn't simply use the order alone (because sometimes it can even in the absence of an 8332), or why he didn't file something sooner. Also, because a violation has to be intentional in order to be deemed contempt, he would likely have to show some ill will on your part in refusing to sign or an attempt to defy the order. His success would depend on the weight of evidence he is able to present, if any.

 

3. I was never served personally, violating my right to due process, WA state lacks jurisdiction, my ADA rights were also violated - the court in WA is completely ignoring state and US laws, as well as case histories. Since the order was terminated in May of 2012 does WA state still have jurisdiction? Also, my home state was suppose to be enforcing the child support order - which is what he was basically asking the court to do by way of contempt - he was not asking for a modification, shouldn't he have contacted my home state about this issue?

 

You stated earlier that you proved something in court - by appearing, you may have waived service. It is impossible though for us to really assess the validity of that claim, though, absent documentation. The answer to the question of whether due process has been violated is best answered then by a local attorney who can review the paperwork. Perhaps legal aid, who often review information such as this at no cost, is an option. Regarding jurisdiction, you're right, the court should not have been establishing child support for a child that was not living there and had not been there for years. The time to appeal, however, has likely passed. And lastly, regarding termination of the case, a motion for contempt can be filed anywhere the party making the claim lives, he need only register the out of state order in his home state and ensure the other party is properly served with notice of the proceeding. A motion for contempt is not necessarily the same as a motion to enforce.


4. We had a verbal agreement in place, he purposely waited until I couldn't modify the order as it was expired, other than child support monies due or arrearages, I could not find one law that applies to contempt for me claiming my daughter on my federal income taxes. The court has continued without my presence and I just received paperwork from the last hearing, it orders me to correct my taxes for 2009-2012, send him Forms 8332, and pay his tax bill from 2010 as he filed his income taxes fraudulently and now owes the IRS some of his refund back. Any suggestions? Does he even have a case at this point?

 

If there is a hearing, were you served with notice, and if so did you make an appearance? You say that you haven't been legally served, but there are differing means of service and an important consideration would be how you found out about the proceeding in the first place. The court hearings can go on without you, if you were served, so it is important to notify the court if you have not - or, if you have, make your position known, such as by responding to his pleadings in the form of an answer and demands of your own. If you cannot appear in person, you can request to appear by phone. But by not appearing, you waive rights each time and could continue to lose more and more ground. If you apply with your local legal aid office, you may be able to get a referral in that state and have that person appear on your behalf and raise the issues you have here in court.

 

5. Can I open a law suit for violation of my civil rights (there is much more involved then I can go into at this moment)? Thanks!!

 

If you believe your rights have been violated, you certainly can file suit, however that is again something we cannot say for certain, because we are not familiar with the particulars of the case and have not seen all of the paperwork that would evidence the complaint. Because civil rights suits are often taken on contingency, meaning no up front fee, you should not have a problem contacting a local attorney about taking the case if she or he finds merit in what you produce for and explain to them.

Customer: replied 1 year ago.

1. if the child has not been in the state for six months or more and is not the child's home state, the court will lack jurisdiction on issues concerning the child. Usually this occurs subject to the filing of something by the other spouse to alert the the court of a problem, such as an exception for lack of jurisdiction. I am surprised that your attorney did not raise that issue, or that the court didn't take it up on its own after you advised the judge of it.


 


I completely understand this now, as I have read every WA state law pertaining to family law. I have no idea why my attorney from 2000 did not broach this subject (lack of jurisdiction), maybe it had something to do with the amount of work. I've read a lot on US case law and history pertaining to jurisdiction. From what I can tell you can challenge jurisdiction at any time. Is it too late for me to go back to 1999 and challenge WA state's jurisdiction from that point? And yes, I do have all the supporting documentation.


 


2. A question might be raised, however, as to whether he asked that you sign it timely, why he didn't simply use the order alone (because sometimes it can even in the absence of an 8332), or why he didn't file something sooner. Also, because a violation has to be intentional in order to be deemed contempt, he would likely have to show some ill will on your part in refusing to sign or an attempt to defy the order.


 


He did try to use the order after he received notice from the IRS in 12/2011 telling him he could not claim our daughter as she did not qualify. The order was vague and ambiguous. According to the IRS (who I spoke with), the order must list the child's social security number (which it did not), it must be signed by the custodial parent (which it wasn't), and the order must mandate Form 8332 and specifically state that the mother shall not claim child on taxes. As far as tax court, I would win hands down. The question is whether 3 years after the order was implemented and 5 months after it terminated would be considered timely? He purposely waited so I could not modify the order and he submitted no proof to the court that I refused to sign Form 8332 because he never asked me. The court now wants me to sign forms, after the fact, but during this time frame he paid less than 50% of my daughter's expenses; I paid all of her vocational school/medical/dental expenses, so now I am refusing to sign forms. What can the court in WA state legally do to me?


 


3. If there is a hearing, were you served with notice, and if so did you make an appearance? You say that you haven't been legally served, but there are differing means of service and an important consideration would be how you found out about the proceeding in the first place.


 


According to WA state laws, I had to be served in person, not by regular mail - this has not occurred. The first few hearings, he was a nonappear and the hearing was continued. I was never notified about any continuances (not by mail or anything). The court there is extremely corrupt, and unfortunately, his wife is a paralegal and worked for the court for a few years and has many friends there. I know you don't have the documentation but assuming everything I have told you is based on facts (which it is, as I have all the evidence), would they have jurisdiction even though I appeared in court to tell them about my violation of due process (also, an out-of-state affidavit was never filed, which was required) and their lack of jurisdiction? I thought a court had to first determine whether or not they have jurisdiction before hearing a case?


 


Please note that I actually did try hiring an attorney in WA state but he took me for all my money as he misrepresented me and I later found out he had a conflict of interest as he had worked with the Pro Tem Commissioner. I could not hire an attorney in my state because they lacked jurisdiction. On the matter of my civil rights being violated, which they were on so many levels, can I hire an attorney in my state or does it have to be in WA state?

Customer: replied 1 year ago.
Relist: Answer quality.
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