Agreement to Pay Mortgage Instead of Support, but No Credit Given by Court

[lreyes72]

My question involves child support in the State of: Washington
I am currently in the military and divorced as of Jan 2010. I separated in Aug 04. I continued to pay the mortgage because my then wife, now ex-wife could afford to live on her own. This went on for several years until I finally filed for divorce in in Jan 2009. In Jan 2010 the dissolution of marriage was finalized in my favor because she failed to appear in court on the final date. 7 months later she filed several motion to vacate and never followed through on them. We had a verbal agreemnet that I continue to pay the mortgage ($1700.00) in lieu of child support until she could afford a place of her own. In Sep of 2011 and after countless times of me asking her plans to move are, I explained that I would have to sell the home because I could no longer afford paying the mortgage and paying half of the mortgage of the home my fiance just purchased. She then filed a restraining order for what Im thinking is to keep me from coming on the property to list it. That was not granted to her. When she didnt allow the real estate agent access to the house the real estate attorney advised me to file a writ of ejectment. I then stopped paying the mortgage and began paying her child support in the amount of $596.00. She then filed for back child support in the amount of $11,000. When we went to court the commisioner pro tem, stated the following: in regards to the ejectment action, he said he would sign a decree if both parties agree to sell the home immediately and if she didnt act on it the court would hold her in contempt. I agreed and we put that matter to rest. In the back child support situation: My lawyer clearly explained to the court that I had paid the mortgage which was 3 times more than the child support for 1 1/2 years when she was living rent free and that this action clearly benefited my daughter because her mother had no way of financially sustaing a place to live. The judge found that neither myself nor her had authority to modify the decree and awarded her $11,000 in back child support along with $500.00 in legal fees. I was in complete shock when I heard this in court. Not only has she been living rent free for over 7yrs since date of separation and continues to live rent free. But now she will get an additional $11,000 which I do not have. I have slept a atotal of 3 hours since 20 Dec 2011. Amazing amazing amazing, and they honestly think that the court makes fair and equitable decisions. WOW. Is there any hope for me here?

[cyjeff]

The judge is, legally and technically, correct.

You do not get to modify the court ordered child support payment by making a payment to an unrelated third party (the mortgage holder).

People don't realize that court orders are exactly that. Orders with the force of law upon all those named within. If you didn't pay her 595.00 a month for 7 years, you now owe it.

I would have sued her for the back mortgage, but that matter has been put to rest. Ask your attorney, but I believe you are screwed on this one.

[aardvarc]

Unfortunately, the courts only get to play with the deck that the parties bring to the table. When the parties in a case have made a series of extremely poor decisions, there is only going to be so much that the court can do towards making things fair and equitable. The courts still have to work within the legal framework that the parties created for themselves. You can't shoot a runner in the leg and then get angry that they didn't win the race on your behalf.

We had a verbal agreemnet that I continue to pay the mortgage ($1700.00) in lieu of child support until she could afford a place of her own.

Probably the biggest mistake you could have made. Child support is child support, paying a mortgage holder is paying a mortgage holder. You'd been paying the mortgage out of the goodness of your heart for years, and no court is going to accept that those payments suddenly turned into payments "in lieu of child support". What SHOULD have happened is that you got a child support order, and paid that amount. Mom should have sought spousal support of her own if she wanted it, and those payments should have been made and recorded separately. Your verbal agreement about child support amounts to NO child support being paid.

In Sep of 2011 and after countless times of me asking her plans to move are, I explained that I would have to sell the home because I could no longer afford paying the mortgage and paying half of the mortgage of the home my fiance just purchased. She then filed a restraining order for what Im thinking is to keep me from coming on the property to list it. That was not granted to her. When she didnt allow the real estate agent access to the house the real estate attorney advised me to file a writ of ejectment. I then stopped paying the mortgage and began paying her child support in the amount of $596.00.

Ok. So this is the point when payments made to mom might be recognized by the court AS child support payments. How did you determine the amount of $596?

She then filed for back child support in the amount of $11,000.

Exactly what any attorney would have advised her to do since there was no court ordered child support and only a verbal agreement. DO NOT EVER MAKE VERBAL AGREEMENTS REGARDING CHILD SUPPORT. EVER. UNDER ANY CIRCUMSTANCES.

When we went to court the commisioner pro tem, stated the following: in regards to the ejectment action, he said he would sign a decree if both parties agree to sell the home immediately and if she didnt act on it the court would hold her in contempt. I agreed and we put that matter to rest.

Ok, so that should have gotten the ball rolling in getting the property sold and lighting a fire under mom to find herself a new place.

In the back child support situation: My lawyer clearly explained to the court that I had paid the mortgage which was 3 times more than the child support for 1 1/2 years when she was living rent free and that this action clearly benefited my daughter because her mother had no way of financially sustaing a place to live.

It's still not child support. That you generously paid for her to live for free is a very expensive lesson. Just because something you're paying benefits the child doesn't mean it stands in lieu of child support. Unless you wrote a check to mom, labeled "child support" the court isn't likely, and in your case apparantly didn't, accept it AS child support. Your attorney put up a good fight, but I'll bet in his heart of hearts that he knew he didn't have a chance of actually winning that argument.

The judge found that neither myself nor her had authority to modify the decree and awarded her $11,000 in back child support along with $500.00 in legal fees.

Sadly predictable. Had you consulted with an attorney BEFORE making your verbal agreement about child support/mortgage payments, that attorney would have jumped up and down to warn you that doing so would have put you exactly this situation. Had you wanted those payments to be seen and interpreted by the court as child support, the way for that to happen is to get an order and have the payments made under that order. The two most dangerous words in all of law are "verbal agreement", and most especially in family law which has lots of ways to formalize agreements (like child support orders, visitation orders, divorce decrees, etc.)

I was in complete shock when I heard this in court.

Then your attorney did you a great disservice by not warning you.

Not only has she been living rent free for over 7yrs since date of separation and continues to live rent free. But now she will get an additional $11,000 which I do not have.

Unfortunately, you wanted to pay for her to live there. Generous, but to your own detriment.

I have slept a atotal of 3 hours since 20 Dec 2011. Amazing amazing amazing, and they honestly think that the court makes fair and equitable decisions.

Think of the court as a gun. You provide the bullets by creating and documenting formalized agreements and contracts - something for the court to enforce on your behalf. When you make verbal agreements instead of formalizing them, and pay for one thing but want it to be seen as something else without IMMACULATE documentation of that intention AND by being able to show agreement with the other party, you load the court's gun with wet paper towels.

I know this isn't what you wanted to hear, but you're behind the eight ball here. You're asking the court to look at mortgage payments that you made for years, and determine that those payments suddenly became child support payments one day, and with only a verbal agreement to back that up. Don't know how the court could have ruled differently, given what you brought to the table.

WOW. Is there any hope for me here?

You should absolutely seek additional counsel from other family law attorneys in your area, but without a time machine, you're not going to be able to go back in time and do it the right way by FORMALIZING child support and then showing that payments made in the past should be recognized as such. I'm just not seeing any solid ground for you to stand on with the child support issue. Some mistakes are very expensive, and this is likely to be one of those. The house issue is a different matter. Keep working with your attorney regarding getting what you can out of the house, either by ejectment or potentially a partition sale down the line. Beware that if mom has an attorney of her own that she might try to force sale of the house (cause wow, then you might have the $11k) so stay on top of protecting your interests there.

[Syren]

don't know if I missed it, but was there ever an order for support entered prior to this lawsuit having been filed by your ex-wife? How did she come up with an $11,000 figure?

[Dogmatique]

don't know if I missed it, but was there ever an order for support entered prior to this lawsuit having been filed by your ex-wife? How did she come up with an $11,000 figure?

It honestly doesn't matter. The judge has an awful lot of discretion and can deviate from guidelines if it is deemed appropriate.

[Syren]

[QUOTE=Dogmatique;579769]It honestly doesn't matter. The judge has an awful lot of discretion and can deviate from guidelines if it is deemed appropriate.[/]




I've been informed by counsel, being in the process myself at this time, that orders are not retroactively instituted...they are valid and enforceable from the date of judgment only.

[Dogmatique]

In WA?

I assure you that support can be ordered retroactively.