My question involves child support in the State of: California
My ex-husband and I separated in 11/2004 and have been divorced since October, 2010. A child support order was put in place in February of 2005.
CS has been modified three times since - the last modification being in July of 2009, based on his then unemployment income.
He has not paid on a regular basis and has an arrears of 54k. The arrears date back to 2005. A least half of the arrearages are from prior to his disability onset date.
This past summer, I was notified by the police that he had a plan to kill our children, so I now have sole legal and physical custody with zero visitation to him.
Recently, he was approved for SSDI, and when the written decision is completed I will apply for auxiliary benefits for our two children, ages 12 and 14.
He will receive a substantial check for back pay, and the children will receive an amount equal to about half of what he will get.
My issue, is that when I spoke to the local CS office, I was told that the entire lump sum of the children's back pay will be credited toward current support, then the TOTAL arrears. It seems to me that most states (see June 2012 Kansas appeals decision, marriage of Tobar) credit the arrears only to the time frame the lump sum covers.
The reason, I am questioning this, is that I believe the prior arrears should be paid or of HIS lump sum back pay, and the kids check should only cover the time since the onset of his disability. If he did not have any arrears, any "extra" benefits received would still stay with the children and not be credited toward future support, so why should any "extra" (after covering arrears within the disability time frame) cover old arrears?
Please understand, I have no problem crediting these benefits as child support, I just don't believe the kids should have to use their benefits to cover his old past due child support.
The local office of CS has referenced me to SSA Assembly bill 2669, which passed in 2004, and a letter from the California DCSS (CSS Letter: 05-13) dated April 2005.
Here is a cut and paste of the section that pertains to my question:
Effective January 1, 2005, LCSAs shall credit a NCP whose children receive federal payments from SSA, RRA, or DVA with the full amount of the monthly payments, including any lump sum payments. Any excess amount may be credited to the non-IV-A arrears.
Example: Child receives $500 per month from NCP’s Social Security Disability income. The child support court order is for $150 per month, leaving $350 to be applied monthly to the $5000 IV-D arrearage. If there is no arrearage, the child receives the total $500 payment per month. The NCP only receives credit for $150 current support.
If the CP or other child support obligee receives a lump sum payment representing payments for more than one month, credit is given for each month for which the lump sum payment was made.
On the statement: "If the CP, or other child support obligee receives a lump sum payment representing payments for more than one month, credit is given for each month the lump sum payment was made", it seems to make it clear that the credits should only apply toward the months the lump sum covers, and of course if those months were not previously paid, then it would cover those arrearages.
Does anyone have any thoughts on this - or any reference to case law since 2005?