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socrateaser
socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 33551
Experience:  Retired (mostly)
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HI,I just discovered something from the debtors exam. I

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HI, I just discovered something from the debtors exam. I have already been questioned for over an hour, and the discovery is being used on websites to defame me. They also got a judgment on april12 2012, for the stipulation on child support arrears and call it damages in the judgment. Can you get a judgment on child support arrears, call it damages in the judgment and put it in together with attorney fees related to another unrelated hearing?


 


Damages are then perhaps bankruptable?

Submitted: 1 year ago.
Category: Family Law
Expert:  Steven K. replied 1 year ago.

Steven Kincaid :

Can you explain what you mean by: "Can you get a judgment on child support arrears, call it damages in the judgment and put it in together with attorney fees related to another unrelated hearing?"

Steven Kincaid :

Are you referring to a written document that does this?

Steven Kincaid :

If so, which document?

Customer:

There was a stipulation that I had to pay 18,00 before a certain date. That didnt happen. They got a judgment, it says judgment on the form for 18,000 damages.

Customer:

Opposing counsel is a collection attorney, he is doing a debtors exam on me for the debt. I applied for disablity, lost my business due to their levying my bank account in april 2012

Customer:

The judgment is for damages and unrelated attorney fees, the attorney fees where for a bank loan debt.

Expert:  socrateaser replied 1 year ago.
Hello. Thanks for requesting me.

Can you get a judgment on child support arrears, call it damages in the judgment and put it in together with attorney fees related to another unrelated hearing?

A: The answer is "yes." The California Execution of Judgments Law provides that a judgment debtor exam applies to enforcement of money judgments. See Code Civ. Proc. Section 668.270; 699.010; 708.110.

Hope this helps.
Customer: replied 1 year ago.

Since I have now a judgment that says damages, I should be able to bankrupt it? In the judgment there is no reference to anything else, the first option damages is crossed

Expert:  socrateaser replied 1 year ago.
Bankruptcy appellate law provides that a debt which is in "the nature of support" is automatically nondischargeable under Bankr. Code § 523(a)(5); In re Gionis (9th Cir. BAP 1994) 170 BR 675, 681; In re Sternberg (9th Cir. 1996) 85 F3d 1400, 1405. The support arrears and attorney's fees are nondischargeable, regardless of whether or not the fees take the form of a money judgment.

Hope this helps.
Customer: replied 1 year ago.

The attorney fees are unrelated to the arrears and were incurred from a bank loan. I am just saying I have a judgment against me that says 'damages'. How they got that is totally unclear to me. Its based on Fraud, since the arrears I have now calculated at a much lower amount with taking the DCSS amount as a starting point. They think its 42,000.


 


I again have the debtors exam on friday, I can only imagine one question left and that is my inventory that is almost depleted and worth nothing to them. But they set a 2 hour exam at my attorneys office. I already went through 1 1/2 hrs that I didnt care about, but as they said it will help them with contempting me. So I am not happy.


 


I have files to overturn the stip as discussed. I dont think there is much to argue over.


 


That will relieve me from 1/3 of the debt because of the 72%. My ex tried yesterday to negotiate a deal. But I cant afford a deal. My health is not improving and I dont see how to setup my business. My application at disability seems to progress very well, I am surprised. How will that help me?


 


I am again applying for reduction in child support and will later overturn the current order based on fraud from my ex. I hired a paralegal to subpoena her car purchase application and so forth. He is also writing my civil suit. What can I use as a change in circumstance? That I applied for disability?

Expert:  socrateaser replied 1 year ago.
This may or may not be helpful, but CCP 708.110(c) provides: "If the judgment creditor has caused the judgment debtor to be examined under this section during the preceding 120 days, the court shall make the order if the judgment creditor by affidavit or otherwise shows good cause for the order. The application shall be made on noticed motion if the court so directs or a court rule so requires. Otherwise, it may be made ex parte."

In plain English, opposing counsel can't just adjourn a previous judgment debtor exam, and continue it to another day, without a court order. You must generally be served with a new order of examination. So, if you weren't served to appear again, or the court, on the last date of your examination, didn't order your return for another examination, then you don't have to appear for another examination.

Don't know if this is useful to you or not. Back to your original question.

If you file Chapter 7 bankruptcy, your ex may file a proof of claim, and state that the judgment and the attorney's fee order a domestic support debt ("in the nature of support"), nondischargeable under Bankr. Code 523(a)(5) -- or she may claim that the debt is nondischargeable under subd. (a)(15), which is a separate nondischargeable provision concerning debts owed "to a spouse, former spouse, or child of the debtor and not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record." Under this subsection, if the attorney's fees order is made payable directly to the attorney, then the fees are dischargeable as an ordinary debt.

So, it depends on the exact verbiage of the attorney's fee order.

My application at disability seems to progress very well, I am surprised. How will that help me?


A: It will show that you cannot work -- which going forward means you cannot be held in contempt or ordered to pay future support. However, it won't help you with a previous contempt or support order.

I hired a paralegal to subpoena her car purchase application and so forth. He is also writing my civil suit. What can I use as a change in circumstance? That I applied for disability?


A: That you have applied for disability does not show changed circumstances. That you are actually found to be disabled under the Social Security Act is the proof of changed circumstances.

Hope this helps.
Customer: replied 1 year ago.

I found a new form online, its called verification of disability. My doctor wants to perhaps sign it, he wants to have it faxed to him. Is that a good thing to do. Its the D248. Its for to calculation of appropriate child support.

Expert:  socrateaser replied 1 year ago.

It's not a new form, but it is local to the San Diego Superior Court as part of a claim of disability related to a child support obligation. The problem is that it's also inadmissible hearsay, if objected to by opposing counsel. So, if there is an objection, then you would have to hire your physician to appear and testify to your condition.

 

Also, if you sign the release, then you are opening the door to have any of your physician's notes subpoenaed. So, if you really want to get this done the right way, then you won't use the form, but you will have your physician appear and testify, instead.

Hope this helps.

socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 33551
Experience: Retired (mostly)
socrateaser and 10 other Family Law Specialists are ready to help you
Customer: replied 1 year ago.

Step dad and aggressive attorney are absent, so my ex and I are trying to negotiate a child support settlement. The offer from me is 10,000 cash and 500 a month for 12 months starting jan 2015.


 


her offer is:


No current child support until Jan 2016, 10,000 cash and 500 for 24 months.


 


Now I learned from you that if it is illegal the stipulation will be overturned. It seems to me she doesnt have the power to set current child support to 0 until 2016, neither has a judge perhaps since who knows what money I and her will be making (or not).


 


I still have enormous tax problems and maybe can be told to leave the country after I give her the cash.

Expert:  socrateaser replied 1 year ago.
Now I learned from you that if it is illegal the stipulation will be overturned. It seems to me she doesnt have the power to set current child support to 0 until 2016, neither has a judge perhaps since who knows what money I and her will be making (or not).

A: I agree. The obligee parent cannot compromise future support. Arrears can be compromised/reduced, but not future support.

Bottom line, you and the other parent can negotiate to reduce your support arrears and attorney's fees down to $10,000, but you cannot negotiate for future support payments, unless the court approves the agreement. And, the only thing that the court can approve is a reduction of ongoing support from the uniform guidelines, until the other parent files a request to increase support.

In short, you could make your agreement, pay the $10,000, and the next day, your ex could ask the court to modify child support back to guideline commencing immediately -- and the court would order guideline support.

So, take future support off the table, because you're wasting your time discussing the issue. The only thing that you can negotiate is the amount of arrears and attorney's fees, for past due support.

Hope this helps.
Customer: replied 1 year ago.

What can I expect from an offer in compromise through DCSS or the court?

Expert:  socrateaser replied 1 year ago.
DCSS will not compromise, except with the obligee parent's consent, or where the obligee has assigned her right to support to CDSS (social services) in return for public assistance/welfare. And, regardless of any compromise, the court must approve whatever DCSS agrees upon with you.

The court will not compromise, except with the obligee parent's consent. Without a compromise, the court must enforce the law -- which means that if you don't pay, you will be held in contempt, unless you can prove inability to pay. The court has discretion to order punishment for contempt. It can order up to 120 hours of either community service or jail. But, it can also order nothing. And, the court can issue turnover orders or writs of execution or garnishment.

The two things that neither DCSS nor the court can do is (1) compromise arrears without the obligee parent's consent; (2) approve a reduction in future child support without the obligee parent's consent. And, the court can reject any compromise if it believes that it has been accomplished by the use of undue influence or subterfuge.

Hope this helps.

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