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Hi! I am sure that you will remember helping me the yesterday…

Hi! I am sure that you...
Hi!

I am sure that you will remember helping me the yesterday with my issue associated with 14.5 years of spousal support overpayment. After your valuable help, I was mulling things over and have a further question on this situation.

As I mentioned previously, I have no idea when the conflicting stipulations got into my file or their sequence. I do know however, that I paid $900 per month instead of $800 from the date of the stipulation.

Upon reflection, there are really two issues here. While my desire to reduce spousal support was the “trigger” to my reviewing my file, it is, in a sense, independent of the support overpayment.

While you indicated that the family law court could rule on how the overpayment might the treated, even if reduced support was not an issue with me, there would still be the issue of the overpayment.

You indicated that there was no way that my wife could keep the overpayment. I have no idea why I would have paid $900 when the stipulation that both parties signed said $800. The altered stipulation may have been the reason, but let’s ignore this possibility for the moment. Let’s also ignore the fact that the altered stipulation exists (i.e., my wife never altered anything). Let’s say that I simply made a mistake. Would I still have the right to recover the overpayments? Plus interest?

In this context, if my wife wouldn’t pay up, would this be a separate civil suit, done independently of the family court or, because it was a support payment, would it still be handled by the family court? Again, the assumption is that alteration of the current support amount was not an issue.

Now, in case it makes a difference, would your answer to the above be different because it is clear that my wife was aware of the overpayment, if not from the very beginning, certainly when she altered the stipulation. At that time she was aware that all past payments were higher than the stipulation and that all subsequent payments were too high. In other words, she couldn’t claim ignorance of the situation until I recently until recently, when I discovered the overpayments.

I am looking forward to your response on this as before I move forward, I want to know as much as possible about my legal position.
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Answered in 4 hours by:
12/1/2010
Joseph
Joseph, Family Law Attorney
Category: Family Law
Satisfied Customers: 7,280
Experience: I have over a decade of experience as a Family Law litigator
Verified

I see that you were working with another expert yesterday. As that expert does not appear to be online at this time, and your question has been sitting around for some time, I would be happy to help you out. I went through the earlier question and I'm familiar with your situation. Additionally, I've been practicing family law for over a decade and I handled a situation very similar to yours recently. With all this in mind, I can certainly provide the answers you seek.

 

Please let me know how you would like to proceed.

 

Thank you.

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Customer reply replied 7 years ago
Hi!

Thanks for the email. Naturally, I wanted to contact the same expert as he was familiar with my situation.

However, since you apparently have access to and read yesterday's on-line communications stream, have a high customer rating and feel confident that you can provide the kind of assistance I need, let's go ahead.

Let's say that I simply made a mistake. Would I still have the right to recover the overpayments? Plus interest?

  • Probably. While I don't believe this changes the situation significantly, it does make a difference. As to the case I handled that was similar, that gentleman overpaid by $25 every payment with biweekly payments for over a decade. He then filed for the return of the payments. While we settled that case, we were arguing that it was HIS mistake and SHE should not be prejudiced. The argument would be similar here. BotXXXXX XXXXXne, I would suggest you still have a good case.

 

 

In this context, if my wife wouldn't pay up, would this be a separate civil suit, done independently of the family court or, because it was a support payment, would it still be handled by the family court?

  • It's still a matter to be addressed by the family court.

Now, in case it makes a difference, would your answer to the above be different because it is clear that my wife was aware of the overpayment, if not from the very beginning, certainly when she altered the stipulation.

  • Her awareness would probably not be of huge significance here. The issues are really 1) what were you supposed to pay, 2) what did you pay and 3) if and how should that be corrected. With this in mind, her knowledge is of little importance.

 

Please let me know if you need any clarification.

 

 

Also, several customers have asked how they may direct a question to me in particular. If you specifically want me to assist you in your legal matter, just put "FOR JOSEPH" in the subject line and I will gladly pick up the question as soon as I am on-line.

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Customer reply replied 7 years ago
Thanks for the reply.

It sounds like you represented the "overpayee" in that similar situation. Could you share with me the nature of the settlement and were the settlement funds actually paid to the "overpayor" or applied to future support payments?

I am having trouble understanding why the family court would have jurisdiction in the "simple mistake" situation, Forgive me for this, but I am a "logician" by training (computer scientist in the early days) and this doesn't seem logical.

For example, if I had a written agreement with my gardener to maintain my landscaping for $100 a month and somehow mistakenly paid $200 a month and then realized the error, I assume that if the gardener wouldn't refund the overpayment, I could file a "normal" civil suit in the "general" court. Again, in my situation, if the amount of support going forward wasn't an issue (the correct amount of $800 in this case), why is this situation different than the situation with the gardener? Is it simply the fact that the overpayment was for support rather than gardening?

I have been told that a person receiving an overpayment cannot legally keep it unless the overpayment was due to some third party involvement where the third party caused the payor to pay an amount that was incorrect (for example, an agency attaching someone's wages to collect an amount due to a person, but somehow collecting an amount that was higher than what was owed). Is this true?

Also, I have been told that because my wife was unquestionably aware of the overpayment at some point, as evidenced by her altering of the stipulation, that she is guilty of fraud This is because as she kept quiet about the past overpayments and kept the future overpayments and is thus subject to criminal prosecution. Is this indeed the case? If so, is this criminal action independent of any civil action? Was she not also guilty of fraud in submitting the altered stipulation to a lender?

I am looking forward to your response as I really want to understand my rights in this situation so that I make the correct decisions moving forward.

It sounds like you represented the "overpayee" in that similar situation. Could you share with me the nature of the settlement and were the settlement funds actually paid to the "overpayor" or applied to future support payments?

  • Correct, I represented the former wife, the person that was benefiting from the overpayment. We resolved the case by stipulating that the former husband was "owed" a certain amount of money, that amount being somewhere around half of what he had overpaid. We further agreed that he would recoup the funds gradually by paying less than the normal biweekly payments. You need to keep in mind that, unless left to the discretion of the court, most cases are resolved by negotiations. Both sides understood that they could lose in court. So the former husband was willing to get less money back and the former wife was willing to pay some amount of money. The rest was a matter of negotiating what that amount should be.

I am having trouble understanding why the family court would have jurisdiction in the "simple mistake" situation, Forgive me for this, but I am a "logician" by training (computer scientist in the early days) and this doesn't seem logical.

  • The simple fact of the matter is that just about anything related to the divorce would be resolved by the family law court. Using your hypothetical, if you had a settlement with the gardener that involved payments and then accidentally overpaid, you would go back to the same court to address that overpayment.

 


I have been told that a person receiving an overpayment cannot legally keep it unless the overpayment was due to some third party involvement where the third party caused the payor to pay an amount that was incorrect (for example, an agency attaching someone's wages to collect an amount due to a person, but somehow collecting an amount that was higher than what was owed). Is this true?

  • Going back to my case, we were arguing that the former husband had demonstrated an ability to pay more and that the former wife had become accustomed to receiving more. And, as such, the court should ratify this "agreement" and now require the husband to pay more. As I've indicated, we settled the matter instead of going to court so I don't know how the judge would have ruled. But, to answer the question, arguments exists for the receiving party to keep the overpayments.


Also, I have been told that because my wife was unquestionably aware of the overpayment at some point, as evidenced by her altering of the stipulation, that she is guilty of fraud This is because as she kept quiet about the past overpayments and kept the future overpayments and is thus subject to criminal prosecution. Is this indeed the case? If so, is this criminal action independent of any civil action? Was she not also guilty of fraud in submitting the altered stipulation to a lender?

  • Could she be prosecuted? Sure. Will she be prosecuted? Tough question. I would suggest this comes down to law enforcements perspective on the altered document. As stated earlier, if you want her prosecuted, call law enforcement, explain the situation and let them make the determination. And yes, any criminal action is wholly separate from the civil action.

 

 

Also, several customers have asked how they may direct a question to me in particular. If you specifically want me to assist you in your legal matter, just put "FOR JOSEPH" in the subject line and I will gladly pick up the question as soon as I am on-line.

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Customer reply replied 7 years ago
Thanks for the prompt and clear response. You've been extremely helpful, especially in sharing your position when you were on the "other side" in a similar situation.

I just have one last clarification point associated with one of your responses and when you answer, I assure you that I will accept your overall answer so that you get paid. This service is a wonderful, highly cost-effective alternative to the traditional lawyer engagement process that existed prior to the internet.

My point is associated with my gardener example. In my example, there was no "prior court", just a written agreement between me and the imaginary gardener. So I assume that I would sue the gardener in "ordinary" court (whatever that is). Are you actually saying that, in general, if a dispute relates to a court filed document that any action associated with that document (regardless of the nature of the dispute) is normally handled by that same court? Or are you saying something else?

I think you have the idea. In general, if you take some one to court and get a court order from that litigation, if you have a contempt/enforcement/modification issue, you will return to the same court to address that issue. That's the case here; you have a court order, there is a problem with the correct enforcement of that order and you need to return to the original court to address that issue.

 

 

Also, several customers have asked how they may direct a question to me in particular. If you specifically want me to assist you in your legal matter, just put "FOR JOSEPH" in the subject line and I will gladly pick up the question as soon as I am on-line.

Joseph
Joseph, Family Law Attorney
Category: Family Law
Satisfied Customers: 7,280
Experience: I have over a decade of experience as a Family Law litigator
Verified
Joseph and 87 other Family Law Specialists are ready to help you
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I am going off-line for the evening. Please feel free to respond, if necessary, and know that I will be back on-line tomorrow.

 

Thank you for your patience.

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