Can This Really Be the Case

[ncdadxx117]

My question involves child support in the State of: NY

I have an original child support order which was issued in 1999. This order has never been modified by me or the ex.

For the first 5 years of this order I paid the child support on the order and willfully advised the ex of any increases in my compensation and we upwardly modified the order based upon the correct percentage. This happened four times within that time frame with the resulting child support payments being increased. We did this between ourselves, without me making it necessary for her to pursue an upward modification through the courts.

at the end of those 5 years, I lost my job. I was on unemployment and did not secure employment similar to my previous compensation level until last year. We agreed, again between ourselves signing an agreement we came up with, to modify the support. She refused to modify to the percent based upon my unemployment compensation, but still agreed to a lower compensation which I paid. About 2/3 of this period I paid the amount from the original court order, but the rest of the time I was short between 100 and 200 per month which she is now asserting is arrears, but based on what we agreed to is in line.

The ex is now stating I'm in arrears for the aggregate amount over the last three years based upon the original court order. I disagree and think her application of the court order is one sided.

I have told her that if we apply the court order uniformly to all of the child support payments (since it was never modified through the courts) in the end, I will come out with a credit. She is merely applying it to the years, despite our agreement, that it would suit here. I realize our agreement is moot and that the court only takes into consideration the original agreement.

I have been told by a friend that overpayments are gifts and underpayments are arrears and that she could take me to the cleaners. I have also been told that a judge is interested in fairness and that if overpayed according tot he court order for those years, it would be counted.

I would like to know how this case would be viewed by the courts and if the application of cs payments (overpayments do not count, but underpayments do) is truly this one sided. It seems to me if it is it does nothing but encourage cps and ncps to constantly go to court and would discourage ncps from being forthright with income increases.

I have done the aggregate calculation for all of the years I've been paying cs since the court order. In sum, I come out with a credit of just under $4,000. There is also a judgment I could have (but did not) file against her for just under $5000 that I was awarded at the time.

Do I have any defense? Will the courts simply take her figures and throw the book at me? Please help. I'm trying to avoid court (after 5 years, I have no taste for it and am only interested in defending myself from what I think is unfair) for my sake and the sake of the kids and their perception of us as they are grown now.

She is in need of additional money, I know that much, and believe she sees this as a way of getting it from me.

Thank you.

[mrshiggins]

If you have things in writing and signed by both parties it could possibly be honored in court. But it all depends on the judge.
I would tell the judge that when you got an increase in pay that you did give her extra money towards the children. But they are mostly considered gifts...
If you do get your @$$ handed to you I wouldn't be so up front about raises... but I would definitely go to get CS modified if you find yourself unemployed.
It's all a game!!! Good luck!

[ncdadxx117]

Thanks for your response, Mrs Higgins. Needless to say I like the IRS' concept of gift better then the family courts, if that's truly the case. I wonder if there is any precedent to a situation like mine that played out in the courts. Either way, thanks for your insights. I wish I knew then about downward modifications what I knew about them last year. the cp has not filed this since the beginning date of her assertion, so hopefully the intervening years, and the last one where payments have been above the original amount again (maybe that would work in my favor too?) will also work against her.

Hopefully this is all a bluff and her threats and my own conscious about paying the right amount of child support are my own worst enemies.