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Attorney Wayne
Attorney Wayne, Lawyer
Category: Family Law
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Experience:  Practicing Law Since 2000
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How do I file for credit on overpaid child support in NY? My

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How do I file for credit on overpaid child support in NY? My brother's son turned 21 in Nov. 2009. He also has a daughter that turned 21 in Nov 2011. NY kept taking child support out for the older child and my brother didn't think too file for them to stop. They are saying he owes $17988.00 in back support but they actually owe him money which I understand he will not get. We need this wiped off his case. Can I get a form to file or what can I do? He has not worked since 2011 and is non functioning at this time. I found him in a homeless shelter in NY. He is incapable of handling his affairs. Any help you can give would be appreciated.
Thank you,

Hello. Thanks for contacting us.


I am so sorry to hear of this situation. It is wonderful that he has a sister who can take care of his affairs given the medical situation he is in. It is a true act of loving kindness.


I assume the court order governing child support is in NY, yes?


If so, yes, it is true in pure, wooden legal sense that child support continues as ordered unless there is a new order changing it. (A modification of child support order).


But the original child support order may state precisely at what point the support stops. If there was an administrative error and the payments continued despite the original order, then there is a strong case for return of assets. However, NY does not like to do this -- and the courts there have been reluctant to return overpayments. Usually, the amount is offset against future needs.


NY's narrow exceptions include a situation in which a father is forced to pay due to a judicial error in applying the child support statute.


In such a case, it will probably be necessary to get a lawyer to make this argument -- as unfair as it seems. The father's incapacity may also be a factor -- as courts are more sympathetic to a situation where someone was not monitoring his or her affairs when there is incapacity involved than where it is simply a matter of not paying attention.


Sadly, this is not something to be done with a form, because is it not a formulaic proceeding. You will need someone who is licensed by NY to practice law to assist (they don't have to live there, but need to be members of the NY Bar). I'd also recommend engaging a lawyer who regularly deals with similar issues.


If money makes this impossible, I can provide information about resources that can help people in need straighten out legal problems. However, I suspect it will require a trip to NY to make use of such services workable. If you need assistance with this information about legal help for those without resources to pay for it, please tell where the child support order was issued (what city in NY).


I wish you every success -- you are truly a wonderful sister to step in to get your brother's affairs in order when he can't do so himself.


Customer: replied 3 years ago.
Thank you for your reply. Could NY arrest him in SC for this debt if we cannot afford to fight this? I don't see him being employable again. He seems incapable of normal interaction. His answers are yes, no, and I don't know. My next step is to try social security disability.

Thanks Wayne.

Kind Regards,

There's a theoretical chance -- but usually there would have to be a contempt citation and that is preceded by a an order to show cause, which would allow a chance for his situation to be explained. If there's already a contempt citation out there, then it will be necessary to get it rescinded -- again, lawyer's work is best in this instance.


Remember, the law is not a tool of sadism; it seeks to encourage certain goals (such as supporting one's children). When the goal is fulfilled, but due to incapacity or legal error, the system continues to make demands that are not legitimate, a judge won't throw someone in jail (or shouldn't, unless the judge is deranged, which occasionally happens). But the court needs to know; given the sheer volume of work, it relies on those affected by its orders to plead for changes as appropriate. Unfortunately, when someone falls into a state of incapacity, and the court does not know, that is when inappropriate arrests can occur in child support cases.


Thus, disability, coupled with entitlement to credits in excess of alleged arrears, should head off any contempt citation that could end up with arrest or reverse it, but the legal steps need to be taken. The refund part is harder -- and will require legal help, as described, as self-help here would be difficult.


Again, I applaud your efforts, and wish you speedy resolution of all issues, so your brother is properly cared for, and this legal nightmare can be closed.

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