Can Dad Take a Stand?

North Carolina Divorce Law Divorce and Separation Answers
1

Wondering if there is any legal standing on this issue, something that could be pursued by Dad.

No legal separation, no divorce, but Dad moved out of the house a couple months ago. Dad has been unemployed for several months. Mom - out of spite and greed, without telling Dad - had her taxes prepared, filed married/separately, and claimed both kids. Resulted in Mom getting refund of almost $9K and dad owing the IRS more than $2K because he had no deductions (which clearly he had not planned for in his withholding).

Even with being unemployed for part of 2008, Dad made the majority of the income (almost double what Mom made), yet Mom claimed both kids, resulting in Dad owing the IRS. If they had filed joint, as always in the past (even during previous separations - yes, this is their third separation), they would have shared a refund. Even if they had filed separately, but each claimed one child, he would not have this outstanding debt to the IRS.

Dad found out about the size of Mom’s refund and would like to believe that it entitles him some relief with regard to paying child support, especially since - even unemployed - he will incur penalties and interest that accumulate while he finds a way to pay the IRS, and a portion of his future income will have to go towards paying that debt; hopefully before the IRS decides to garnish future wages.

Dad is uncertain as to the legal position on an issue such as this and wonders if he has to accept powerlessness over what she has done, and continue to be walked on.

Does he have any repercussion at all?

Thank you as always.

2

Dad should contact the IRS. If the separation did not begin until 2009 the tax deduction for the children in 2008 and resulting refund would be marital property and divisible. Even if the separation began in Dec. 2008. The IRS would see the couple as being separated if they have lived separately for 6 months or more of the tax year.

After contacting the IRS, Dad should consult with an attorney in regards to equitable distribution of marital assets and debts, custody and child support. If the custody and child support have not been agreed upon, there should be an attempt to put into writing some sort of schedule and amount.
Dad is NOT powerless and does not have to allow Mom to treat him badly unless he chooses to…

3

Thank you for the feedback, stepmother.

Dad left in late November, so they were in fact together for more of the tax year than they were apart, and they have not been apart for 6 months at this time.

Mom has already received the refund, and promptly transferred it out of the “joint” account, so not sure what the IRS can do about it at this point, but once Erin responds, I will print this out and pass on to Dad, so he has everything.

Division of marital assets has theoretically already been established since this is their 3rd go at a divorce. He has what he’s keeping and she has what she’s keeping. No argument from either party on that.

The CS is another matter. She continues to dictate an amount to him, yet she has thus far refused to profide documentation to back up her calculations with regard to what she is paid and what she pays for health insurance for Dad and the kids. So Dad is doing a best guesstimate of his own, and he’s been paying that amount until there is a formal agreement or until she provides copies of W2s and paystubs.

Visitation needs to be determined; however, with Dad being several states away and unemployed, he has not had the money for gas and hotel. And, to date, Mom has never offered to assist in any way. She believes that - because he left her - the full responsibility of seeing his kids falls on him, and she should do nothing. Never mind that he has sent her the majority of his unemployment income, to the point of leaving himself totally broke, but she continues to “offer” for him to come see the kids, knowing he can’t afford to come, and then she demeans him and degrades him for not caring enough to come see his kids. She’s a nightmare, really.

(I suppose I should throw in here quickly that Mom, Dad and the Kids always lived in Maryland, but during the second separation, Mom moved herself and the kids to NC. Dad remained in MD, but shortly after, decided to try to reconcile with Mom so that he wouldn’t be so far from the kids. He joined her and the kids, but after 6 months of misery, he returned to MD. The marriage wasn’t working and there was no employment in NC. So at this point, even I am confused as to whose responsibility it is to facilitate visitation, since she moved out of state, but then he joined her for 6 months, only to return to the original state. I think it should be that they split the responsibility, but that’s just me.)

Dad does need an attorney, and he knows that, but the unemployment status and lack of income throws a wrench into the ability to retain one. He will retain somebody as soon as he can, but meanwhile, he is SO THANKFUL for this site and all the advice given by the members and the legal staff.

4

I believe I’m correct here in saying that regardless of what state child support is governed by, I do NOT believe the Mom can just dictate what you have to pay. My suggestion is to have the governing state calculate what support would be. That way she HAS to provide the information she’s witholding now (salary, health insurance). Don’t let her jerk you around and be controlling. The courts will see that you’re showing good faith by providing support dispite your unemployment even if it’s not what she asked for or what the state would mandate–especially since you don’t have a formal signed agreement. I would continue to pay what you can (or what you’ve been paying). Don’t increase it unless you want to or can. If she’s spiteful, she may be coming up with a figure SHE wants…which may be much more than you’re legally obligated to pay. I feel that there is a reason she is withholding this information. GOOD LUCK!

5

If child support is determined in the State of NC, you can use the child support calculator (under tools/resources) on this site to determine a suitable amount. It is very important that he start paying the proper amount of child support right away, rather than waiting until later.

If you Google “child support MD calculator” you will get a list of child support calculators for MD.

The big problem you’re going to have is that these calculators are based on the number of overnights spent with each parent, and right now finances are interferring with his ability to get the number of overnights he would like. FWIW, expenses incurred travelling to see the kids or arranging for them to come visit can be entered into the NC formulae (under “Extraordinary Expenses” in Step 4 of this site’s calculator). Technically, each parent will bear a percentage of the cost based upon their relative incomes and his child support figure will be lessened by the percentage amount of whatever he must pay for travel.

Not sure what the attorneys will say on this, but my inclination is to use his unemployment figures as the income amount for the calculators, and probably 80 overnights for each child, unless he expects to request less overnights, then use that figure. It’ll be a balancing act between affording to enforce visitation and the amount he’ll have to pay.

If he doesn’t know her income, then I would impute minimum wage for 40 hours per week to her, unless you have information that might suggest that she makes considerably more than that (e.g. job title like “Software Engineer”), then you might be able to impute a bit more for the calculator although I’d err on the conservative side when doing so.

6

Thank you to everyone who has responded. Hopefully Erin will log in soon, as well :slight_smile:

Despite there being nothing in writing to say he has do, Dad IS paying CS, based on the NC calculator, using figures for income that are close, but not verifiable at this time since Mom won’t disclose. But Dad has shown good faith, has continued to pay, so that is not an issue.

The real reason for this post is to ask about his rights with regard to the tax situation, the underhandedness displayed by mom, the huge (9K) refund she received without telling him she had even filed, and the resulting balance ($2000+) Dad now owes the IRS.

Is there anything he can do? Would it be wrong for him to withhold some of the “non-official, non-formal” child support (remember, no agreement of any sort in place, and no case filed with CSE or the Courts) that he’s been so willing to pay out of good faith? Is there something that allows him to recoup any of that $9K to help pay his own $2000+ tax debt?

Or is it too late … what’s done is done and he’s just “skee-rewed” as I say …

Thank you again!

7

Consulting with an attorney is not normally that costly. Understandably his being unemployed is a cause for concern but he may be eligible for legal aid.
Keep documentation of everything. Contact the IRS and see what they suggest. The money being put into a joint account is why he did not have to sign to cash a check. That account needs to be closed or his name removed. A record of these transactions needs to be gotten before the account is closed if it’s a joint account.

He is still entitled to 1/2 the money regardless and if he is able to file with the courts for ED, she would be required to pay back 1/2 that money to him. I do not know if the IRS could do anything at this point but it’s worth a shot. Keep in mind that the $2000 is 1/2 her debt too just as the refund is 1/2 his…I don’t know what MD law is on this, but in NC the marital assets and DEBTS are divided equally (more or less)

I do not think that the child support can be withheld, even though it is “non-official, non-formal” without an agreement because he has been paying this amount. If he has been paying an amount he should continue paying that or at least not decrease it lower than the guidelines suggest. He should run the calculator as though he has the children every other weekend at least, which would be reasonable visitation since he lives in MD, and with her making the last known salary or minimum wage. Do not include insurance on her side of the calculations unless she offers the proof. This may decrease the amount he’s currently paying enough to help matters. He should inform her in writing that he is going to do this beginning X date and he should make a written request for her financial information to calculate the amount of child support so that her response is also written. If she does not provide this information, then he should respond that he’s going to pay according to the NC guidelines with her salary at either last known or minimum wage, and no extra expenses on either side.

He should not be solely responsible for visitation costs and I’m not sure that there’s any court that would tell him that. Both parents are responsible for making visitations happen. If she has primary custody and is receiving child support then the majority of the responsibility should be on her, but that may be just my opinion. I believe that NC courts would have the parents sharing the responsibility.
It sounds as though Dad also believes that she deserves to dictate his life, the lives of the children and his finances…it’s going to take him finding out what he’s entitled to. He does not deserve the treatment that he’s receiving but unless he realizes that, there is no helping him. He must find out where he stands legally and stick to that when dealing with the ex. No more demands. He will have to realiz that they are his children too and that unless there has been a formal custody hearing or agreement, he has equal access to the children. He could move to NC, have the children live with him and have her paying him child support…
Regardless of who left who, the end result is the same and the children will suffer for it. It’s up to him to put a stop to this behavior and quit allowing himself to be walked on. If he allows it to continue, it will be accepted behavior later on.

8

If your spouse is the one with whom the children were living, she has the right, per the IRS rules to claim the children However the refund she received is subject to Equitable Distribution, as it is martial property. The debt you owe is also martial in nature, and you will receive a credit for having paid this amount.
You need to file a claim for Equitable Distribution in order to pursue your share of the entire marital estate. You will need to include a claim for child custody as well.
As far as child support, there is a calculator on this website which can be used to estimate the appropriate amount of support. I always recommend that some amount of appropriate support be paid from the date of separation until support is determined by the court, or via agreement.
Moving forward, depending on the custodial arrangement, you may very well end up claiming one of the children.