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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Family Law
Satisfied Customers: 110426
Experience:  Experienced attorney: Family law, Estate Law, SS Law etc.
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At the time of my son's mother and my separation I was in the

Customer Question

At the time of my son's mother and my separation I was in the military stationed in Texas. My wife took my son and moved back to our home state of California. I picked up part time work to supplement my military pay and the total support order was $550 a month. When I had a chance to end my military service I did so in order to move back to California to be with my son. When I moved back I was unemployed and my ex was doing very well for herself working for a title company during the real estate boom. We both decided that we would share 50/50 custody and that no one would pay support. She told me she had her attorney close the order and I believed her. My attorney had left my case because I could no long afford to pay the $400 per hour premium and I had absolutely zero knowledge of the law as I was out of state the entire time of the divorce and the support presiding. Once I got on my feet and the real estate market fell my ex left my son with me and moved out of the area to southern California. She ended up contacting the child support office and telling them I had not been paying her for the past 2 years. I got a letter saying I was $22,000 in arrearage. During those two years I had my son well over 75% total and paid all of his day care, medical, and daily expenses. The old support order was based on 10% custody and she was responsible for day care and medical. I have been battling with her for years over these issues and unfortunately I still have no means to hire a proper attorney. I currently have 100% custody of my son because she lives out of state. Do I have absolutely any recourse to remove the arrearage based on the situation? I have been denied access to a passport, have been unable to build a savings for my son's and my future, and have no chance to ever buy property or a business with this looming over me.
Thank you so much for listening and any advice is appreciated,
Jason Giannini
Submitted: 5 months ago.
Category: Family Law
Expert:  Law Educator, Esq. replied 5 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
Unfortunately, once there was a written child support order, the only way you could cancel that support would be with a written agreement or going back to court to file to terminate or modify the order. If that was not done, in order to get any relief now you would have to present some written proof that she agreed no child support would be due and then you would have to file a motion to waive or vacate arrears based on that written agreement.
If you failed to move to modify the support payment when the custody changed, this is another issue and it is one that the court could make adjustment to arrears if you can prove as you said above that you had the 75%-100% custody time with the child. It is not going to be an easy case and it will require an attorney and proof to the court (not child support enforcement) that there was an agreement and support should not be due her when she has not had the child. If your attorney is out of business, you would need to get a new local family law attorney to file and get this to court for you and seek at least a reduction based on the circumstances.
Customer: replied 5 months ago.
I understand the case is complicated and that I should hire an attorney. I tried that, unfortunately I could only afford $1,500 and that bought me an attorney that went out of business shortly after I paid her. Could you possibly tell me what I have to file for arrears relief?
Expert:  Law Educator, Esq. replied 5 months ago.
Thank you for your reply.You have to file a motion to vacate/waive arrears and to modify support. It can all be filed in one motion where you would explain to the court the changed circumstances, provide proof you have of the agreement and provide proof she has not had physical custody as you said above. You have to serve her and also child support enforcement a copy of your motion when you file it and the court will set a hearing. Now, I know you are going to ask about forms, but they do not have a pre printed form to do this, you need to go to the court library and ask the librarian for form books to get a motion template and you have to write it from scratch.