Will CoronaVirus Garnishment Over-Payments Be Refunded to Non-Custodial Parents

Source: TheChildSupportHustle.com

Kenya N. Rahmaan

There have been numerous reports concerning non-custodial parents (NCP) who will not received Coronavirus stimulus payments for allegedly owing child support debt.  Amid countless unanswered questions and extremely vague responses to inquiries from parents and child support advocates, the Federal Office of Child Support Enforcement (OCSE) has finally released a letter offering some offset processing instructions for child support agencies tasked with seizing payments meant to assist during this critical global crisis.  Of course, there is no mention of cancelling child support payments while the country lives through the pandemic. It looks as if the government has found yet another way to legally rob non-custodial parents.

To be clear, the CoronaVirus Relief and Economic Security (CARES) Act (the “Act”) intentionally exempts these rebates from reduction or offset against certain debts, there is no exemption for child support debt, (OCSE, 2020).  At first, it seemed that alleged child support debtors were the only people subject to having the stimulus money garnished. Later, reports showed that private debt collectors with judgments against citizens could attach bank accounts in order to satisfy debts. (https://bit.ly/34SsOl1)  Many news outlets and consumer protection organizations have offered information explaining defenses for non-child support debtors.  To this day, there is only the newly issued letter from the OCSE and the advice to file for a child support modification supplied as a guide for struggling NCPs trying to pay bills during the Covid-19 pandemic.

Many have asked how the stimulus money can be seized since the payment is intended to assist people experiencing financial difficulty caused by the virus.  Due to:

these economic impact payments are treated as a tax refund offset, and not an administrative offset, the Act does not provide states the option to suspend federal tax refund offset in cases meeting the eligibility criteria under Section 464 of the Social Security Act and 45 CFR 303.72


Office of Child Support Enforcement (2020)

For The Temporary Assistance for Needy Families (TANF)/Foster Care cases,the threshold for an offset is $150 and for non-TANF/Medicaid-only cases, the threshold increases to $500.  This amount can grow because of unnecessary and the ever present fees charged by child support agencies. Understandably, the child support agency is expecting increased collections as they garnish tax refunds and stimulus money.  But what will happen when and if the money seized results in an over-payment to a child support account? More than likely, nothing.

Source: SelfDrivingCars

There is a reason that state child support agencies fail to issue refunds when over-payments occur and are proven by the NCP.  Based on a report written by Paula Roberts, there is no provision for recouping over-payments in the law. Because of this, NCPs have filed complaints in relation to overpaying on child support accounts just to be ignored by the overseers of the unjust system.  When they are lucky enough to receive a response, they are either told that the over-payments will be credited for future child support payments or, on a closed account, he or she is told to file a civil lawsuit against the custodial parent (CP) if they want a refund. Telling parents this is tantamount to a fool’s mission.

While a NCP stands little chance in recovering over-payments from a CP, the government does have limited guidelines to follow when attempting to recoup over-payments made by state agencies.  Admittedly, there are several instances where an over-payment can occur, however, the ways to recoup are limited, even for the government. According to the OCSE (1997), a state may recoup the over-payment to a custodial parent from the next monthly support payment if the custodial parent agrees to allow the state to do so.  NCPs have two choices, allow the over-payment to be applied to the account or appeal to the other parent for their money. These are going to be the only choices dealing with the over-payments of stimulus payments.

When wondering how such a travesty could be permitted, there are limited explanations provided for the public.  Let’s consider the scenario where a NCP is still paying for a child that has been emancipated. Once the over-payment has been identified, at least in Texas, it is not the responsibility of the state to recoup the excess funds.  Rachel A. Brucks, a Staff Attorney at Cordell & Cordell, (2019), explained that: 

if a Texas agency had no way of knowing the obligor was overpaying, such as not being notified that the obligation to the minor child ended early because the child died, got married, dropped out of school, etc., then they are not responsible for attempting to recover the funds, as they had a good faith basis for continuing to distribute them.





The state would, however, enforce punishments against the NCP if he or she failed to make full and timely payments. Case workers readily and forcefully assume that responsibility all day, every day, across the nation.  Meanwhile, the CP is not held accountable for reporting those life changing events. Even when CPs receive over-payments from emergency stimulus money provided during the pandemic, as we know that they will, the government will claim zero responsibility in the recouping of the payment.  It is the responsibility of the paying party to recoup the funds from the overpaid party (Brucks).

Another example of how the government hides behind the exclusion of protections for reimbursement for over-payments by NCPs is the age old argument that child support is for the best interest of the children.  Even with overwhelming evidence of the child support program being a welfare recovery program and proof of the billions of dollars generated annually on behalf of government and private entities, many still believe this talking point. The federal government has even boasted that the child support system is a ‘government success story’, and that is very true. This is not so true for the millions of low-income children still living in poverty or the non-custodial parents who are forced to live year after year without full paychecks, seized bank accounts, and now offset CoronaVirus stimulus money.

Source: Ciyou & Dixon, PC

In New Jersey, the government will not consider over-payment refunds, although it’s their fault.  According to Jacobs Berger, LLC., even if it is shown that child support was paid erroneously or in a greater than was just, it is unlikely that the payer will be reimbursed or that any retroactive actions will be taken.  That money will never reach the children. The over-payment adds more money to state budgets and there is no recourse available for the children or the NCP. The defense for this thievery is that the reimbursement of child support over-payments will put the custodial parent in a difficult position, and will therefore, negatively impact the child, (Jacobs Berger, LLC.).  Again, and in addition to, the case of the stimulus payments, negative impact that will be forced upon NCPs is not considered and is flat out ignored.  

With the roll out of the CARE Act and the stimulus payment offsets for alleged child support debtors, it is important that NCPs protect themselves now and in the future.  One of the most significant steps to take is to demand an audit and an itemized statement from the local child support agency. Traditionally, the assigned case worker will only provide a printout with dates and amounts.  This is an insufficient invoice to provide to NCPs as they are being charged tens of thousands of dollars and being punished because of that debt.

If the electric company or a department store sent someone a bill for $25,000 without a detailed explanation of the charges, most would refuse to pay the debt.  A child support bill should be treated no differently. This is especially important since there are no protections for over-payments made by NCPs and there are talks of more stimulus money being authorized.  As it stands, when the stimulus money is seized, the child support account is overpaid, there is no accountability and no way to demand a refund. NCPs need to verify that child support bills are accurate so that they avoid any future over-payments.

References

Brucks, R. A. (2019, May 28). How do I get reimbursed for overpayment of child support? Dads Divorce. https://dadsdivorce.com/articles/how-do-i-get-reimbursed-for-overpayment-of-child-support/

Economic impact payments under the coronavirus aid, relief, and economic security (CARES) Act. (2020, April 13). Office of Child Support Enforcement | ACF. https://www.acf.hhs.gov/css/resource/economic-impact-payments-under-the-coronavirus-aid-relief-and-economic-security-cares-act?fbclid=IwAR0HncsaBl7WaCQ4Hg2WlO9-8H1yHZdrlEJztIDePikA5BtTyiOWj1UhQbo

Jacobs Berber, LLC. (n.d.). What can I do if I have overpaid child support? | Child support attorneys Morris County NJ | Morristown child support overpayment attorneys. Jacobs Berger, LLC. https://www.jacobsberger.com/what-can-i-do-if-i-have-overpaid-child-support/

Office of Child Support Enforcement. (1997, September 15). Collection and disbursement of support payments. Office of Child Support Enforcement | ACF. https://www.acf.hhs.gov/css/resource/collection-and-disbursement-of-support-payments