Downward Modification: Avoiding the Child Support Trap

As a family law attorney, I am often contacted by potential clients who find themselves in a difficult situation.  They are served with a petition for child support arrears, along with the threat of a finding of willful violation of the child child support order, and possible incarceration.  Alternatively, they may receive a letter from the child support enforcement office indicating that their tax return is being withheld or that their license to operate a motor vehicle is being suspended.  By the time he has contacted an attorney, this person has already found himself in a deep hole.

While some find themselves in this mess because they don’t want to fulfill their obligations, the vast majority end up there due to circumstances beyond their control.  Many men lose their jobs and go on unemployment.  Eventually, they take another position at lower pay.  While on unemployment, they continue to have the same child support mount taken from their benefits and they struggle to survive on what’s left.  If they manage to find a lower paying job, they again struggle with what is left over after the income deduction is made.  Some will eventually take a job such as driving a cab, where they are paid in cash daily and the money is no longer being deducted automatically.  Having exhausted their savings, falling behind on bills and often borrowing in order to make ends meet, they find themselves unable to meet their child support obligations.  Arrears accrue and the trouble snowballs.

What many people don’t know is that they can, and should, immediately go back to court and file a downward modification.  Either through lack of awareness, or out of a sense of obligation to provide for their children, they don’t exercise this option.  Either way, the result is that they are in a deep legal bind.  The parent that is not longer receiving the child support---without an explanation---is understandably upset.

If you are subject to a child support order and you lose your job, you should immediately go to court and file a downward modification.  Although you have to keep paying until the order is modified, filing the petition starts the clock running.  Continue to pay as much as you can.  Contact an attorney.  If you can't afford an attorney, get your papers together and be prepared to present your case.  Be prepared to demonstrate to the court that you were involuntarily terminated.  If you received a termination letter from your employer, bring it with you.  If you didn't receive a termination letter, ask your former employer if the company could provide a letter explaining the reason for your termination.  Look for work.  Document your job search.  Keep track of every job you apply for; where, when and by what means.  Keep any rejection letters or emails.  Keep track of any interviews that you go on.  When you go to court, have all of your documents in order.  Bring several copies of any documents you wish to provide the court.  You should have a copy for the other party also.

Remember, hard times can fall on anyone.  Protect yourself and your legal rights.  When things improve, the order can be modified back up to an appropriate amount.  Best of luck.

Divorce and Teenagers: Minimizing the Trauma

Parents can do their part to make divorce less traumatic on the children.  Here’s an informative article from Huff Post.

http://ow.ly/fQOuS


Too often, in my experience dealing with families going through a most difficult situation such as divorce and custody disputes, I see the impact that hostile court proceedings have on the children.  They are often angry, not just because their parents will be apart, but because they are stuck in the middle of this tug-of-war and are being pulled in two directions by the warring parents.  Believe it or not, by the time a marriage ends, the children have seen and experienced so much that they are glad the two combatants will be going their separate ways.  The children often look forward to the peace that is to come.

Unfortunately, what follows is a continuing, sometimes years-long, battle in court.  The child is then forced to "choose sides."  S/he feels pressured to make each parent think that the child loves that parent but only tolerates the other parent.  This scenario isn't created spontaneously by the child.  It is the direct result of the actions of the parents.  Sometimes it is it is subtle and sometimes it isn't.  Some parents get angry when the child speaks on the phone to the other parent.  The child sees this and tries to avoid that situation.  Sometimes one parent cries frequently over the breakup in the presence of the child.  The child may then feel the need to pull away from the other parent in order to ease the sadness.  Children often hear arguing over the phone or during visitation exchanges.  That, too, is unhealthy for the child,making him feel responsible for the tension.

Occasionally, you come across a case where the parents are in court to dot the I's, cross the T's and have a Judge's stamp on an otherwise amicable parting of ways.  Invariably, the children in those cases are happy, well adjusted, and thrive from having a healthy relationship with both parents.

False Confessions

[This is a re-posting of a blog post that was originally written in February, 2013]

A provocative Time Magazine article about false confessions resulting inwrongful convictions.

http://ideas.time.com/2013/02/11/why-innocent-men-make-false-confessions/

The biggest tragedy when police elicit a false confession is that an innocent person may spend years, if not the rest of their lives in jail.  If you’re not big on individual liberties, think about the other big tragedy.  Namely, that the real criminal continues to walk our streets, preying on other victims.

I remember well the hysteria which engulfed New York City during the time of the Central Park jogger case.  People were outraged and wanted justice.  The police and prosecutors were determined to bring the case to arrest and a successful prosecution.  One wants to believe that law enforcement officials are not intentionally setting out to convict innocent people.  However, cutting corners and using nefarious means to get someone to confess is, at best highly irresponsible; and, at worst, criminal in its own right.

Being a lawyer myself, I want to believe that prosecutors are honest people who put forth the strongest case they can, based on the evidence the police supply them.  Am I being naive?  The police, and specifically the New York City Police Department (NYPD), are stats driven.  They want to close cases and move on to the next.  If they can strong-arm an arrestee (one that they presume to be guilty in the first place) into confessing, it makes for a quick and tidy  resolution of the case.  It also makes for a certain conviction.  Combine this with the hype caused by politicians who want to make the electorate feel that they are doing a good job, and you have a recipe for disaster.

As the article indicates, it is often youth, or intellectually challenged individuals who fall victim to these tactics.  Many times, they are minorities and poor, who do not have access to adequate legal representation.  That is not always the case, however.  We all are potential victims of the strong arm of the law.

It is this writers opinion that all confessions should be videotaped.  Otherwise, there is no way to know whether the confession is truly voluntary, or if it is the product of coercive tactics.  If there is nothing to hide, the videotape should not be a problem.

A word to the wise:  Always exercise your right to counsel.  Ask to speak to an attorney as soon as you are taken into custody.  Keep restating your desire to speak to your attorney before you will answer any questions.  Even one who is truly innocent is best served by remaining silent.

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