Thank you all for your contributions to my post. While some of the info is conflicting, I will find my court order and repeat the exact language it regarding the emancipation age in a future post.
Suffice to say, my oldest son returned from the Navy on a discharge and is living with his mother and plans to attend college full time. While he has not enrolled yet, he did mention something about obtaining unemployment compensation (how he can get this I do not know) but if he gets an unemployment check, I wonder if that emancipates him.
The entire issue for me is what has the greater authority when it comes to emancipation? My court order was finalized in October 1998. Perhaps NY changed the statutes after then to 21 as for some states it is still 18. If the statutes were changed, then I am beholden to which one - the state or the court order? If the statutes were changed after my order, does that grandfather my order?
I was in the court system for 4 years between the divorce and the custody. Aside from being subjected to the Seussical realm of decision making I also realize that the court is a place where the judge is God and supreme ruler and whatever decision they make, regardless of how non sensical it is, will stand up.
On this issue I am tempted to believe that the court order takes precedence as exceptions to the broader coverage of laws are regularly made in the form of court orders (correct me if I'm wrong here, but if you take items from simple land variances to various modifications for support that run contrary to state percentages it seems to be so).
With regard to the ex's claim of arrears: I pride myself on never having been in arrears. During the custody trial a judge declared me in arrears when she handed down her support order 6 months into the trial - in the meantime I was paying 200 per week child support and the court order called for $125 per week. The judge refused to take into consideration my payment pre order, so she declared me in arrears. I later fought this and won.
The current arrears situation is as follows:
In 1998 an order of support was handed down for $149 per week. I had paid that support until 2000 when I voluntarily went to the ex and we UPWARDLY modified it based on the NYS percentage for 3 kids. I did not hide my increase from her nor did I make her go to court to get a modification of support.
When I lost my employment in 2004, I told her we'd have to modify the support to a lower amount until I became employed again and she agreed and we signed a document (both of us) basing the support on unemployment compensation.
While I was looking for work, I was not able to get employment that would provide for the same level of support she was accustomed to, so I took whatever work I could get and admittedly, it was inconsistent and much was OTB so I was paying as close to possible whatever I could pay and still survive - but all amounts I paid were well over the 29% of my income.
The ex came to me in 2006 (with no indication of dissatisfaction previously) with a spreadsheet stating that I was in arrears for diff between the agreed upon monthly payments of $480 and $550 and the original court order.
I disagreed and she kept threatening court. It's been four years now and she is still claiming it is arrears and still threatening to take me to court despite having admitted to me that she knows we made an agreement but she needs more money and this is the only way she can go about it.
After that I took out loans and borrowed money and kept working as much as I could to make sure I paid her $600 per month according to the court order as I was warned that I should and criticized for not knowing I really should have gone to the courts the day I was originally let go to request a downward modification.
My main concern is that she is labelling me in arrears unfairly and using the court order to her benefit - she admitted as much to me stating that anytime she as a mother goes into the courts it's a "one armed bandit in my favor because you know they're gonna give me something".
My question is that if the child support was not upwardly modified through the courts, can I take the payments I made over and above the original $600 per month to my credit against the arrears she is claiming? It seems exceedingly unfair that she can use the order as she decides and I have no recourse.
Does the fact that she never brought the issue to court for mean anything? I've been paying the court ordered amount since 2006, so I'm thinking since she never sought it in the courts the courts will not recognize her claim as since she never pursued it while it was happening is indicative that she agreed with the amounts. I wonder if this fact could work in my favor as she did after all agree to it.
I admit that I was paying less than the court ordered amount, but never less than the percentage for three kids. I was ignorant of the fact that I looked at the court order as a baseline frozen in the moment document when it came to child support as surely income would go up and down and to have to go to court each time to modify just seemed too ridiculous. I guess I was wrong. I thought if there was ever an increase or decrease in income, it was up to us to modify it and if there was a problem or disagreement we could go to court to resolve.
The fact that she did not have to go for an upward modification and is then using it against me for not knowing that I had to go for a downward modification seems very imabalanced. I really wonder how the courts would view this. I think it stands to my credit that I was forthright in supporting my kids and always informed her of any increases, but I'm not certain how far this logic will get me in court if it comes to that.
Suffice to say, I am paying her more than that now, but she is pressuring and threatening me every way she can for what she claims to be arrears. For fear of the court's lack of discretion when it comes to father's rights with regard to child support, I will do anything to avoid the courts as I do not think they will ever treat me fairly (she was awarded custody over me because the courts felt that she would not be strong enough to maintain a relationship with the children were I given custody whereas I had shown exceptional ability to maintain a relationship with the kids as a non custodial parent during the trial - after 3 years that was a big enough kick in the teeth for me to lose all faith in family court judges and the family court system in at least this district). This judge was also a self proclaimed fathers' rights judge, btw.
Given all of this, I would really like to know how I can argue these arrears as I do not think them fair, I feel it is extortion under the guise of child support and further - the money NEVER goes to my kids.
Since I've been paying her 300 monthly above the percentage (which is now higher than 600), she purchased a new car (which was not needed) among other things yet has not set any money aside for the kids' college.
Since I live in NY state and my court order states I pay child support until the age of 18, but the broader state guidelines consider emancipation at 21, which will take precedent?
How can I feasibly not have to pay what she claims to be arrears - which I'd much rather put aside in an escrow account for my children in a worst case scenario, if that would be a viable compromise. Money for my kids is not the issue. It's the principle of having to suffer through the ex's extortion as well as the ability to finally teach my kids the value of earning something - like a college education.
I guess the only thing for me to do at this point is consult with an attorney in the county where I reside. Although a father using an attorney to seek relief from any type of child support issues compels a judge to always consider "if he can afford an attorney for this why doesnt he just give her the money she wants" and then it's a losing proposition all over again.
Am I truly facing a lost cause for any semblance of fairness on this issue?
Again - your help and advice is very much appreciated. Thank you all for your posts so far.