Friday, October 16, 2015

Yes Your 401k Account Can Be Taken For Overdue Child Support

By:  Carole L. Chiamp

Under ERISA 206(d)(3)(k), a Qualified Domestic Relations Order (QDRO) can be enforced against employees and retirees to provide income for children who are alternate payees.  A QDRO can provide payment to the custodial parent as the guardian of a dependent child.  The plan may permit payment to an alternate payee even before the employee is eligible to receive benefits.  Under IRC 414(p), an EDRO can be enforced against state employers who consent to such orders.  Also, retirement benefits in pay status can be garnished under state laws of the Social Security Act to enforce child support orders.  Notices of withholding issued by a state agency (read Friend of the Court) that administers child support are enforceable as QDROs even without a court order as long as they meet ERISA requirements (Dept. of Labor Opinion 2001-6A).

Wednesday, October 14, 2015

What is the Statute of Limitations on Child Support?

By:  Carole L. Chiamp

Clients sometimes call many years after a divorce complaining that the Michigan Friend of Court is after them for non-payment of support.  Though there may be a moral obligation to pay, the legal right to enforce lasts only so long.  Section 722.3 of the Michigan Compiled Law obligates parents to pay support for their minor children.  The support is calculated under a formula that takes many factors into account, such as number of children, incomes of the parties, overnight parenting times, and child custody arrangements.  In Michigan, the non-custodial payer usually pays by paycheck deduction to an agency (MiSDU) which sends the payment to the custodian parent.

Enforcement falls to the Michigan Friend of Court Bureau.  If a parent fails to pay when ordered the FOC may impose a lien on the non-payer’s real estate, intercept their tax refund, take professional license, garnishee wages, take arrearages from retirement or 401k accounts and attorney fees.

The statute of limitations for enforcement is “10 years from date of the last payment is due”, MCL 600.5809(3).  For example, if a parent owes child support from when a child was three years old, with the last support payment due when the child attains the age of 18, unpaid child support dating back to when the child was four could be collected 25 years later to age 28. [MCL 600.5809(3) and Rzadkowolski v Pefley, unpublished, 237 Mich App 405 (1999)].

Monday, October 12, 2015

Michigan Court of Appeals Directs That Children Be Vaccinated Unless Contra-Indicated by Their Pediatrician

By:  Carole L. Chiamp

In a case that has been to the Michigan Court of Appeals twice, the court has ordered that the children of parents who cannot agree on whether to have their children vaccinated, be vaccinated.  In a 3-0 decision, the court ordered that unless contra-indicated by their pediatrician, the children should receive routine vaccinations.

The court in Kagen v Kagen, (unpublished opinion No. 318459, issued on July 14, 2015) laid out that the father who desired vaccination for the children had shown by a preponderance of the evidence that vaccinating the children was in their best interests.  The best interests of the children are found in a list of factors under MCL 772.23.  Since the trial court judge had erred both times the case was before her, the Court of Appeals took control and issued its own order.

Wednesday, October 7, 2015

Get What’s Yours: The Secret to Maxing Out Social Security

By:  Carole L. Chiamp

The title of this article is also the title of a new book by Ron Lieber (published by Simon & Shuster, February 2015).

If you are thinking of divorce, there is much to recommend your reading it.  Most people do not know that if you are married for ten years you may collect social security retirement benefits through your spouse.  Better yet, it does not cost the other spouse a dime.  In my practice I have recommended to many a prospective divorce seeker to wait to enter their divorce judgment if they are close to the ten year mark for receiving benefits.

This book is a valuable resource to parties contemplating divorce and to practicing family law practitioners.  Also of use is a download published by the Social Security Administration: Social Security Benefits What Every Woman Should Know (and man, too, I might add).  Last accessed: August 4, 2015.