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Attorney DROD
Attorney DROD, Family Law Attorney
Category: Family Law
Satisfied Customers: 33
Experience:  Over 20 years experience in Family Law. Divorce, Child Support, Protective Orders, Enforcement of Orders, Child Protective Service, Power of Attorney, Custody/custody modification and more.
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I am a payee representative for my brother Dennis 62 who receives

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I am a payee representative for my brother Dennis 62 who receives SSI. A portion of it is disability 40% and 60% regular SSI. His ex wife of over 35 yrs ago has filed for child support on their son Mike who is now 45 years old. She was successful in pushing it thru and now my brother mentally disabled is about to have his SSI taken starting in July. Mike the son said he never lived with her. What can I do to get this stopped?
Submitted: 1 year ago.
Category: Family Law
Expert:  Attorney DROD replied 1 year ago.

Hello and thank you for using Just Answer. I am very sorry to hear of your brother's difficulties but he is fortunate that he has you to help him.

I have a couple of questions before I answer your question. When was the original child support order entered...what year or what age was the son. When was the last payment for child support due? When you say "she was successful in pushing it thru" you are referring to the child support? Do you mean the original child support order from 40 years ago?

What is the most recent order? When was it entered. You state you have tried negotiating, with whom have you attempted to negotiate?

Please answer these questions for me and I will be able to provide you with the general legal rules which apply in your state. Thank you.

Expert:  Attorney DROD replied 1 year ago.
I would like to provide you with some information regarding your question.

In order to collect either child support or arrearages (past due amounts of child support) in the state of Michigan) one must bring a suit for either before the statute of limitations passes. The statue of limitations apply various time limits to bring suit. If a suit is not filed or, in your brother's case, if collection for past due support is not sought within a certain number of years then the suit or collection attempts are barred.

In order to file a suit for child support in your state, the iniital suit must be brought by either the time the child reaches the age of 18, or if a later age is agreed to due to the child still being in school or a disability, by the time the child reaches the age when child support should terminate. Based on the information you provided, this was done in a timely manner.

So, the next question is how long is the statute of limitation to collect past due child support. According to Michigan law, the statue of limitations on collecting arrearages is 10 years from the time the last child support payment was due. If there was a judgment for arrearages within this 10 year period, then the judgment is valid; however, it is a recent judgment, you should contact an attorney in your area, with whom you can meet personally, to fully discuss all the dates and facts and who can look through the legal documents which pertain to your brother's case. The lawyer will let you know if the judgment is barred by the statute of limitations or if there is some other way to challenge the order.

Finally, as to your last statement that your brother's child never lived with his mother. The rule is not so much did he live with her but raises the question of did she provide support for him wherever he lived. If she did not, you should discuss the matter in person with an attorney. Because even if she is not entitled to the child support, someone else maybe. A local attorney can inform you how you should proceed regarding this issue and can gather facts from you necessary to determine if you have legal grounds to challenge the child support based on evidence that you can present in court.

Generally, many courts will state that as each child support payment is due every month it is a final order. Some courts will withdraw the order or modify it, some will not. Again, an attorney in your area can advise you on this matter.

I see you do understand that social security benifits can be garnished for purposes of collecting child support. However, to provide you with information behind the actual laws here is a link regarding the subject which also cites the federal allow which allows this to happen:

http://www.acf.hhs.gov/programs/css/resource/attachment-of-social-security-benefits

I have provided you with the general principles which apply to the issues you stated in you question which I know are very concerning to you. I understand it is difficult to live on social security benifits alone and to have to lose any portion can have serious effects on your brother's economic situation.

Please ask me any follow up questions you may have. If I can offer any clarification on any of the information I have provided, please ask. I want to make sure you are satisfied with my answer and your experience with Just Answer. However, I cannot stress enough that it is very important for you to contact an attorney you and your brother can meet with personally to discuss this matter. I understand that finances are limited so here are some links for legal aid offices in Michigan which may be able to assist your brother:
http://www.michiganlegalaid.org/

http://www.legalaidwestmich.org/

http://www.usattorneylegalservices.com/free-legal-aid-Michigan.html
(Contact the attorney listed under "Divorce Attorneys" on this link

http://www.lsem-mi.org/

http://lsnm.org/

I do not know which part of the state you live in so I have provided you legal aid offices which provide services for three areas in your state. Any one of them should be able to direct you to the correct office.

I also included other organizations which provide free legal service to residents of Michigan. I sincerely XXXXX XXXXX is able to help you and your brother.

As I stated, please ask any follow up questions you may have. I will be happy to provide answers until you are satisfied I have answered your question.

I will schedule a follow up with for two days from now in the event you think of any items you would like additional information on.

In the event I have provided you with the information you need and been able to guide you in the direction you need to go and you do not have any follow up questions, I would greatly appreciate a rating of a 3, 4 or 5 so that future Just Answer customers can have the benifit of your seeing how you rate my services. Also, if I do not receive a rating of a 3, 4 or 5 I will not receive payment for the Answer I provided you.

I sincerely XXXXX XXXXX and your brother all the best and I hope everything works out for him.






Attorney DROD, Family Law Attorney
Category: Family Law
Satisfied Customers: 33
Experience: Over 20 years experience in Family Law. Divorce, Child Support, Protective Orders, Enforcement of Orders, Child Protective Service, Power of Attorney, Custody/custody modification and more.
Attorney DROD and 2 other Family Law Specialists are ready to help you
Customer: replied 1 year ago.

"So, the next question is how long is statute limitations..."



Denise, so as per the following my understanding is that it could not be collected past age 28 being it is 10 years beyond age 18 correct?


 


Dennis does not live in Michigan at this time nor does his ex wife Virginia Donaghue. She filed back in 2007 while in Arizona via her daughter back in Michigan. Is that legal?

Expert:  Attorney DROD replied 1 year ago.
So the original case was filed was filed in Arizona? When was the case first filed requesting child support?

Yes, you understand correctly. A suit to collect arrearages (an arreage cannot occur until a Judge enters orders for child support and the person ordered to pay does not pay) must be brought within 10 years of the date the child reaches the age of majority, 28. Arrearage, past due child support is completely different from child support. Which is it the mother is now trying to obtain? An original order for child support or an order to collect past due support that your brother was ordered to pay prior to the child turning 18?

Is there a final order for child support prior to the son turning 18? If so when and where was it entered.

If there is a final order from an Arizona court, the statue of limitation may be different. Please let me know so I can determine if it Arizona law I need to look into.

We will figure this out together.
Customer: replied 1 year ago.

To set the tone, keep in mind we had no father and our mother was never around. Jennie our next door neighbor took my brother at the age of 12 to father her two daughters, he worked odd jobs at gas stations to make money. He was so young that he wasn’t functional to have children yet she got pregnant and had two more ny unknown fathers. They married at the age of 16. In the end he adopted the youngest named Mike. After the divorce she kicked Mike out of the home at age of 12 because he did not get along with her boyfriend.



The child support being filed is for arrearage prior to 18. The case was filed in Michigan back around the late 70s. Dennis moved here to Arizona in 1978. She moved later to Arizona in the early 80s and got married. Around 2007 she heard that Michigan had passed some sort of law that would allow her to file an extension on collecting past due child support. So she had her daughter send her some forms to Ariz which she filled out then FedEx it back to the daughter. I thought this was to be illegal because Jennie (exwife) would have to be resident living in Michigan the time of filing extension. The filing had nothing to do with neither Arizona nor its laws. Since 2007 and up to now, any time he has an account with money in it the bank seizes it and sends it to Michigan including money I had with shared accounts.


I believe the final report to pay child support was around 1978


Thanks so much for the help


Darrell Wedding XXX-XXX-XXXX

Expert:  Attorney DROD replied 1 year ago.
Just want to let you know that I am working on your question. I am doing research to go back to 2007 to see if I can find this Michigan law which she claims allowed her to file an extension to collect past due child support. I will provide you with the information I find as soon as I am sure my research is complete.

Thank you for your patience.
Attorney DROD, Family Law Attorney
Category: Family Law
Satisfied Customers: 33
Experience: Over 20 years experience in Family Law. Divorce, Child Support, Protective Orders, Enforcement of Orders, Child Protective Service, Power of Attorney, Custody/custody modification and more.
Attorney DROD and 2 other Family Law Specialists are ready to help you
Expert:  Attorney DROD replied 1 year ago.
I would like to thank you for your payment and the bonus. It is very greatly appreciated.

I have been researching the laws pertaining to the collection of arrearages in the state of Michigan to find out what happened in 2007 that cause your brother's ex-wife to believe she had some sort of an "extension" to make a claim for arrearages. I have reviewed statutes that were changed at that time and read them together with case law dealing with these changes and I am prepared to explain to you the general principal of what happened.

Up until the late 1990's in Michigan, as each child support payment became due the 10 year statute of limitation applied. So, for example on a child's 8th birthday, if child support was not paid, the 10 year statute of limitation began in the birth month of the child's 8th birthday...and so one for each subsequent month. So the child only had until his 18th birthday to make a claim for the child support missed on his 8th birthday.

In 2006, it seems this law was modified so that instead the 10 year statute of limitations applied from the date the last and final child support payment was due, usually on the child's 18th birthday. So, under the new law, the child (or the person who was due the support) had until about the 28th or 29th birthday to bring a case to enforce arreages.

Based on what I read, this caused a great deal of confusion as everyone who was due past child support believed that they all had until the 28th (or so) birthday of the child to obtain a judgment for arreages. However, according to the case law I read this was an incorrect interpretation. When new laws are passed, the legislative body, or court, making the new law can decide that it will apply to everyone back before the time the law was passed or it can apply only to those who turned 18 AFTER the date the law was passed. The court in the case I read stated that it was clearly the intent that the law would apply only to those who turned 18 after 2006 when the law was passed. Everyone before that would be subject to the old statute of limitation which was 10 years from each month the support payments were missed from the time support was ordered until the child turned 18. So, in short, under the old law, when a child turned 18 he had 10 years to bring a suit for arrearages going back no further from the last payment due prior to turning 18.

So in your situation, the old law would apply. The statue of limitation for your brother's son for payments your brother missed when the son was 12 ended when the son was 22. The statue of limitations for payments missed when the son was 12 1/2 ended when the son turned 22 1/2. So that by the time the son reached 28 his only claim would have been for the payment your brother missed the very month the son turned 18.

The child's mother may believe that she could file a form that was issued in 2007 which would allow reneogtation of the arrearage based on the father's ability to pay. However, the forms that were issued in 2007 are no longer available anywhere I could find. The link to the forms simply states they are no longer available. However, if you look at more recent forms, they are there and available for public use. According to one form from 2007 that I was able to find both parties would have to have negotiated a reduced amount of the arrearage and there was a limitation on the amount and number of years the obligor had to pay.

I would like to give you a few links so if you like you can read the full text of all I have explained here. Then I would like to end by sharing with you one form I came across which I strongly advise you take to a Michigan attorney because I believe that it may actually help your brother.

Here is the link to the Michigan case which was decided on appeal which outlines the differences in computing the statute of limitation for collection of arrearages through the late 90's and an explanation of the new law which became effective in 2006. I have summarized the case and its ruling for you above.

This link just provides some general information regarding the change in the Michigan law in 2007. When you read it, you may see, as I did that the article actually explains how the change can actually benefit father's such as your brother who are low income and on disability. It explains how the law can reduce the arrearage, limit the amount of payment and contain it to a certain number of years.

www.accesskent.com/Courts/FOC/pdfs/newsletter/112007.pdf

Finally, here is a link to the forms that pertain to these laws going back to 2007. You will see if you try to open the links to the older forms they are not there anymore and have through the years to the most recent document been replaces. I would like you to pay special attention to and review the forms that are 4th and 5th from the top issued in January of 2013. From my review of these forms they seem to offer assistance to reducing arrearage to person's such as your brother on limited incomes and or disability.

http://forms.justia.com/michigan/local-county/wayne/

Again, I cannot stress enough how important it is that you take the information I have provided to you here to begin a discussion on how to resolve this situation for your brother once and for all. You all need to confer with a Michigan attorney who is very familiar and experienced with all the ins and outs of these laws and the forms I have mentioned above.

As I stated earlier, the information I provide you hear are general principles of law and not legal advice which you would obtain from a Michigan attorney who can meet with you in person, see the documents you have, is familiar with the court system there and can advise you if the above forms will help your brother out of this situation sooner rather than later.

As always, if you have any follow up questions at all or if I can clarify any part of my answer for you I am more than happy to continue to work with you until you feel you have a good grasp of the principles of law I have outlined for you.

Thank you again for allowing me to assist you and for using Just Answer.

Denise
Customer: replied 1 year ago.

Denise, yes it was in fact in 2006 when she filed the extension. I remember speaking to her in 2008 on the subject trying to get relief. I told her that in my research laws indicate Mike was too old being 38 to fall within the 10 year limitation. She said that since she filed for an extension in 1997 (on 28th Bday which gave her another 10 extension to age 38 which is the age filed again under 2006 extension law, they (Michigan Friend of Court) told her that filing again under the new law 2006 would extend her basically with no end date limitations.


My questions are:


Can we subpoena copies of all these so called extensions she filed and get copies and/or references for the laws which supported her actions?


When you said you read the law “caused a great deal of confusion” is there a source available that I can refer to as a reference to indicate confusion?


When you wrote “according to the case law I read this was an incorrect interpretation” “The court in the case I read stated that it was clearly the intent that the law would apply only to those who turned 18 after 2006 when the law was passed. Everyone before that would be subject to the old statute of limitation which was 10 years from each month the support payments were missed from the time support was ordered until the child turned 18.” Where can I find this case?


Answers to these questions would be very helpful. Thanks again, Darrell Wedding


 

Expert:  Attorney DROD replied 1 year ago.
Good morning. Here are the answers to your questions:


Can we subpoena copies of all these so called extensions she filed and get copies and/or references for the laws which supported her actions?

You don't need to subpoena copies. Anything filed with a court is public information. Any person, with an interest or not, simply needs to go to the courthouse and ask for copies. You will need the courts' case number XXXXX at least the names of the parties and the year the case was filed.

When you said you read the law “caused a great deal of confusion” is there a source available that I can refer to as a reference to indicate confusion?

I'm sorry, I thought I had given you a link to the case I cited but I reread my answer and I left it out. I will need a little while to find it again. When I do I will post it for you. The case will answer your last question of the law as it cites other sources as well. Please allow me a little time to find that for you.

Thank you again, Denise





Customer: replied 1 year ago.


Denise, the account shows this as "Closed" do I need to open another with this as question? I have not replied as completed because I am concerned I will lose communication with you. I have no problem paying another $53 with bonus


Thanks Darrell

Expert:  Attorney DROD replied 1 year ago.
Good mornong Darrell. No, you should not need to post it as another question since it is merely a follow up to your original question for a case citation I did'nt provide you. If for any reason you are not allowed to continue your follow up and are required to post a new question start your question off with "For Attorney DROD only,...." I will see the posting and answer. And since we are dealing with your original question I will send an email to customer service informing them of this. Then it will be up to them to charge or not.

I am looking for that ciatation right now.












Expert:  Attorney DROD replied 1 year ago.
Here is the citation for the case:

http://statecasefiles.justia.com/documents/michigan/court-of-appeals-unpublished/20100420_C281077_143_281077.OPN.PDF
Attorney DROD, Family Law Attorney
Category: Family Law
Satisfied Customers: 33
Experience: Over 20 years experience in Family Law. Divorce, Child Support, Protective Orders, Enforcement of Orders, Child Protective Service, Power of Attorney, Custody/custody modification and more.
Attorney DROD and 2 other Family Law Specialists are ready to help you
Expert:  Attorney DROD replied 1 year ago.
Please let me know if you need any further information as pertains to your original question.

Hope you have a great day!

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