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A Good Lawyer Can Tap a "Deadbeat Dad's" Retirement Plan for Past Due Child Support
Last week, I discussed low cost options for collecting past due child support, including filing a wage assignment with the Circuit Clerk where the only cost is a certified letter, or working with Missouri’s Child Support Enforcement program (CSE), which charges a nominal $10/year.
A wage assignment is a great first step for anyone with a delinquent "ex", particularly one that’s steadily employed for someone else. And, for the person with limited means needing comprehensive assistance, CSE can’t be beat, although their high caseload often means it can take 6 to 9 months or more for CSE to execute their administrative options of tapping into someone’s wages or placing a lien on their bank account.
But for the price, these alternatives deliver real value, but only if they succeed! Too often, though, collecting from "deadbeat dads/moms" can be a frustrating game of cat and mouse. This is particularly true if the owing parent is self-employed or hops from job to job, making a wage assignment ineffective. It is equally frustrating tracking down their savings, which they move from bank to bank, or stash in the account of a friend or family member. Or, the "ex" that has squirreled his/her acorns away in a brokerage investment account or retirement plan, which require more complex legal procedures to break open.
These are situations where a private attorney can be more effective, but at a cost likely to be at least several hundred dollars. The attorney, though, will be able to give your case a great deal more priority and directly execute whatever remedy is needed at the earliest opportunity. (In contrast, CSE first exhausts its administrative options, such as tapping wages and bank accounts, before involving the local public prosecutor to pursue options that require an attorney.)
After filing the wage assignment, your lawyer can move immediately to file garnishments with the court to capture whatever cash, stocks, bonds etc. your "ex" has stored in banks and brokerage investment accounts, plus place liens on whatever real estate and other valuable property he/she owns. However, your lawyer’s ability to move quickly assumes that you have accurate information on where your "ex" banks or maintains his/her investments. If this information is not known or out of date, your attorney can subpoena your "ex" and ask him/her under oath to identify the location of his assets, as well subpoenaing any associates that may be holding funds.
Your attorney can also have a portion of your former spouse’s retirement plan transferred into your name. This is done by having the court issue a Qualified Domestic Relations Judgment Order ("QDRO"), which directs your ex’s retirement plan to transfer up to the full value of the delinquent obligation into your possession. The downside is that often the assets cannot be spent until retirement age, or if they can, a penalty might have to be paid. And in most cases, the person receiving the assets has to pay the taxes due when cashing out, although the value of the assets transferred can be set to include the anticipated taxes.
Lastly, one effective way to motivate a recalcitrant "ex" is by having the court find that he or she is in contempt of court. Your attorney has to demonstrate that your "ex" had the ability to pay, but intentionally refused. But, once proven, the court’s usual response is to throw the deadbeat in jail, letting him/her out only to go to work, until the obligation is satisfied. Although the court’s reluctant to entertain this motion until other remedies fail, a few overnights in the county lock-up often brings about the desired effect.
Child support is based on the Missouri Child Support Guidelines. The court calculates support based on the gross monthly income of the parents, the cost of health insurance, the cost of day care, and the cost of providing support to others (such as parents or minor children of other marriages).
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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