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COVID-19 Federal Relief Check - Is My Ex Entitled To Any Of It?

Can my COVID-19 Federal Relief check by taken by my ex as child support?

Federal Relief Check - Is My Ex Entitled To A Portion Of It?

The answer is, it depends. 

There are two possible scenarios capable of creating an obligation to share all or a portion of your COVID-19 relief check with your ex:

FIRST:

A pre-existing garnishment order already on file with the IRS, ordering the seizure of your tax refund(s) to satisfy past due child support payments.

      • This occurs when you are behind on your court ordered child support payments, also known as child support arrearages.
      • If you are in arrearages on court ordered child support and your payments are being collected through your local child support enforcement agency, normally through garnishment of your wages, then there is almost certainly a pre-existing order on file with the IRS to seize any refund(s) you become entitled to receive. Those refunds are sent instead to your local child support enforcement agency to be used as payment toward the child support you currently owe. 
      • As part of the COVID-19 Stimulus Check relief package almost all of the normal reasons the government has to withhold federal payments to individuals (such as certain debt or payments owed to the Federal Government such as owing back taxes, defaulting on student loans, etc.) have been suspended. Meaning the government can no longer take funds from an individual's tax refund to pay them. 
      • However, the one debt that the government chose not to suspend was child support arrearages. Accordingly, if you currently have a preexisting garnishment on your income and/or order on file with the IRS to withhold any tax refund you become eligible for then your COVID-19 Relief Check is subject to seizure by the IRS to satisfy that debt. 
    • TAKEAWAY: In other words, if you have reported child support arrears, all or a portion of, your stimulus check will be redirected to reducing your child support arrears.  The parent who is owed the back-child support will be receiving those funds through your local child support enforcement agency
      • To be clear, if you have recent child support arrears brought on by recent corona virus related financial losses, including job loss, it is extremely unlikely that these funds would have yet been reported to the federal government since the court's are not likely to consider issuing such an order an "emergency" and you will still likely receive your stimulus check.
    • Injured Spouse Form - If your spouse is (i) behind on his/her child support payments, (ii) is subject to a child support arrearages order with the IRS, and (iii) you file your taxes joint and married, it is important that you file an Injured Spouse Form to protect your portion of tax refunds from being seized and used to satisfy your spouse's child support debt. Please contact our office if you have any questions about this. 

SECOND: 

If you are not subject to a garnishment order already on file with the IRS authorizing the government to seize your tax refund(s), then you will receive your COVID-19 Stimulus Relief Check. However, your ex may have contacted you requesting that you give all or a portion of the check to him/her, are you obligated to do so? 

    • If you are meeting your court ordered child support obligation then the answer is NO, you are not obligated to pay a dime more than required by court order / agreement. 
    • If you are failing to pay child support because the Covid-19 crisis has caused you to lose your job or resulted in some other economic hardship, then while not obligated, as a demonstration of good faith to the court you should use part of it to pay at least a portion of your child support payments. 
      • If you suddenly find yourself unable to pay child support due to COVID-19 job loss you are likely to find yourself in court addressing the matter once the crisis has passed. When that day comes your best defense to non-payment is showing that you acted in good faith. 
      • However, to be clear, without a pre-existing garnishment order already on file with the IRS, your federal relief check however cannot, and will not, be garnished, so it is up to you to decide to pay and if so how much. 

There two most common situations this question arises in:

  1. You are single, live alone, have no other dependents and are unable to pay all or a portion of your child support obligation. 
    1. In this situation the court will look at if you made a good faith effort to cut all possible expenses so you could pay as much of your child support obligation as possible. 
    2. Did you cancel your gym membership? Did you attempt to have a hold placed on your credit card payments, mortgage payments, netflix membership etc., or was the first place you skimped your kids (at at least that is how they will view it)? 
    3. If you are not able to meet your child support obligation because of the economic effects of COVID 19 then you should try to pay as much as possible, including a portion of your relief check, to show the court you were making a good faith effort to support your children during this difficult time. 
  2. You are remarried and have ours children in your home that you are financially responsible for supporting, but are unable to pay all or a portion of your court ordered child support obligation because of the Covid 19 financial crisis. 
    1. In this situation you can argue that part if not all of that money was needed to provide for the children in your current household. That being said the court will still look closely at your finances to see if you skimped where you could, particularly regarding financial obligations that solely benefit you and not the children in your household.
    2. Things like, did you try to get a hold placed on your credit card payments, mortgage, gym membership etc. Basically did you try to cut everything you could financially for yourself
    3. However in this situation you could most likely argue that the Netflix membership and internet service etc was necessary for the children in your current household. 
    4. So unless absolutely all of that money is needed to support your current household, if you are behind on child support payments then you should use at least part of your relief check to pay a portion of your child support obligation. Again, this is all about showing a good faith effort. 

RESOURCES:

Unable to Pay Child Support Because of COVID-19 Related Job Loss

COVID-19 Impact on Child Custody & Visitation

Tax Refund Seizure To Pay Back Child Support & Injured Spouse Relief

COVID-19 Custody & Child Support Issues - My Ex Is Withholding The Kids From Me

C&M Law COVID-19 Firm Response

Areas We Serve

Virginia, Washington, DC and Maryland.

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