Category Archives: maintenance

A critical analysis of state incentives and child support payments

The True Equality Network is a group of mostly women 40,000 strong who are a rational group unlike most radical feminists and are advocates of shared parenting who recognize the tremendous bias against dads in family courts. Recently Terri Lynn Tersak wrote a very informative detailed piece that details the economic motives behind child support, the motives behind how the state acts and why the states do not and never will collect child support arrearages.

There are several key messages and data in this piece that all of us should have at our fingertips to understand the real problem as opposed to getting carried away by what we see in the media or what is communicated based on cursory analyses.

read the full article here

The Federal incentives under the failed “Child Support Incentive and Performance Act” (CSPIA) actually pays the states more money not to collect child support arrearages than it does for collecting them and that most of the people screaming about the problems with child support are missing the most critical point; the fighting is all about the money, not about our children.

SOME KEY FACTOIDS

1)      The US Census Bureau reports that 90% of fathers with joint custody, 79.1% of fathers with visitation rights, and 44.5% of father with no visitation rights pay their child support in full.

2)      Parents who are wrongly denied visitation with children don’t pay child support regardless of the enforcement actions taken over 60% of the time.

3)      Less than 5% of male child support obligors who legitimately qualify for federally required downward modifications in their child support orders are granted reductions.

4)      The US Department of Health and Human Services (DHHS) Office of Child Support Enforcement (OCSE) reports that 70% of all outstanding child support arrearages are owed by obligors’ earring less than $10,000.00 per year. Most of the arrearages from this group remain unpaid after ten years.

5)      DHHS-OCSE reports that approximately 5% of all outstanding child support arrearages are owed by obligors earning over $40,000.00 per year and 100% of the arrearages owed by this group are paid within ten years.

6)      US Census Bureau figures show only 57 percent of moms and 68 percent of dads required to pay child support pay all they owe.

7)      The most effective and cost effect method of child support enforcement is enforcement of custody and visitation orders.

8 )      The most common method of wrongly reducing a parent’s time with their children is through false claims of abuse.

9)      Since 1999, every state has cut state level funding for child support enforcement by as much as 32%.

10)   False claims of abuse are so pervasive our states have started passing laws making it a criminal act to do so (The sad thing is; filing false claims of abuse is perjury and perjury has always been a crime).

One of the sources of income for the state is the “incentive payment pool”. However, a states share of the pie is much higher if the administrative costs of collecting child support is lower i.e. the states are incented based on their cost effectiveness of collecting child support payments. Hence the popularity of wage garnishment since it keeps administrative costs low, thereby increasing effectiveness, thereby increasing a state’s share of the incentive pool.

As you go down the income range of obligors, each state hits a break point where they make more money not collecting an arrearage as they would collecting. Moreover, at the bottom of the scale, they can actually loose incentive monies by collecting these accounts.

The third “class” of child support monies is called, “Collected, undistributed.” That means the states actually collected the money, but did not pay it to the parent who was expecting it. This collective amount of collected but not distributed child support payments in every state is not a trivial amount. The states will tell you they have no idea where these parents are. They tell the parents expecting the money, it wasn’t paid by obligor and it sits in interest bearing accounts and the states get to keep the interest. How do they make this work? Because fighting parents do not speak with each other and get their information from the state.

The parents who need the child support the most get the least amount of service, so our welfare reform is not replacing public assistance, it simply abandoned the neediest and their children.

Today, the American male is taught to believe that violent behavior by women is “comical” and that pusillanimous submission to violent women means you are “sensitive” and therefore worthy of being with a woman. While at the same time any type of violent behavior on the part of a man requires they receive “social retraining” and/or are incarcerated.

In order for the states to get the biggest piece of the big pie as they can, they need a lot of child support to be collected. To that end, they need a lot of child support on their books. So, they must generate the maximum amount of child support per case and being that their budgets depend on those incentives, they have to find a way to maintain those levels in as many cases as they can.

Based solely on ideology and government-funded, industry promoted propaganda, today the generally accepted perception is that only men are abusive in intimate relations and only women are abused. Only men fail to pay child support and only women suffer from the system. The long established facts clearly demonstrated by hundreds of peer-reviewed research studies show that none of this is true. Yet radical ideologues demand ever more draconian intervention with total disregard for due process and the rule of law. There is no effective oversight of what the funding is really spent on; and that the present system not only fails to serve, but abuses the abused. Yet zealots demand more of the same and ever more government funding. This is a classic approach of bureaucracies. If the current approach does not work, the obvious solutions are to throw more money at the problems and hire more bureaucrats to promote the party line.

Prevent Interim Maintenance under 125 CrPC if case ongoing in HMA (secs 9 thru 14)

This landmark judgement supports above, although many judges and lawyers do not know about it.

CLICK HERE TO READ JUDGEMENT

Multiple Maintenance Suits Do not make sense

The logic –

hma/HMA – hindu marriage act
hama/HAMA – hindu adoptions and maintenance act

hma was passed in 1955.
hama was passed in 1956.

before hma and hama, the way to get maintenance was to file for
maintenance in civil court and fight the case based on uncodified
personal laws and customery laws and through established
caselaws/judgements of courts etc.

the way to get interim maintenance was to file under section 488.
section 488 was a summary trial. it had a limit – probably Rs 100 to
start with in the initial days.

so there was a civil part of maintenancnce litigation and a criminal
part under section 488. the criminal part was only for interim
maintenance.

For the above reason, one can see multiple judgements which say –
decision of civil court will prevail over criminal court for
maintenance. The reason for this is that criminal section 488 was
only interim. civil maintenance was final. hence such statements in
multiple orders ( we will have to collect some of these to refer in
PIL. I have seen some of these but never bothered to keep them. a
search in some legal paid website can throw up some of these ).

then in 1955, hma came into being. it had a special section 24 for
interim maintenance. and a special section for permanent maintenance –
25 hma. It is clear from judgement jawaharlal dhawan that it is
clear and unambiguous that once any petition is filed from section 9
to section 14 of HMA, interim maitnenance will have to be under
section 24.

this above is logic for not allowing to file any other maintenance
after any petition under section 9 to 14 hma is filed. law and
caselaw is clear on that.

once marriage is disrupted under section 9 to 14 hma, permanent
maintenance can only be given under section 25 – law is clear and
judgmeent also says so.

now on to hama. hama if one looks carefully does not have any
explicit section for interim maintenance. the hma which was passd
just a year before that had special section for interim maintenance.
its not that the law makers forgot to add interim maintenance under
hama. the whole funda before that was interim maintenance under
section 488. it was supposed tocontinue with hama also. so while
marriage subsisted, s 488 for interim, section 18 hama for civil
maintenance. this is what was the intention. thats why they did not
put any section for interim in hama.

in 1975/76, they put new crpc and put section crpc 125 which was
nothing but copy of s 488 of old crpc. so then also, interim by crpc
125, maintenance under 18 hama, as long as no petition under section
9 to 14 of hma.

somewhere down the line, judges forgot the law. new judges did not
know the law and went by stupid convention.

down the line, in the 90s, interim maintenance was allowed under
hama. as soon as higher courts allowed interim maintenance under 18
hama, that was the time they should have disallowed hindus to file
crpc 125 since there was no reason left to use a generic law when a
specific statute was present.

later on in 2000/2003 timeframe, limit on crpc 125 was removed and
interim in crpc 125 was allowed. most of this was to facilitate other
religions which did not have strong codific laws like hma and hama.

after the changes in hama which allowed interim and after changes in
crpc 125 which removed limit of 300/500 Rs and also allowed interim,
hindu wife should not be allowed to file under crpc 125.

hindu wife should now file under 24 while any activity under hma.

hindu wife should now file only under 18 hama while no activity under
hma.

hindu wife must file for permanent alimony only after decree is
granted under 9 to 14 of hma.

any questions ?

jawaharlal dhawan judgement explains some of it well.

a good judgement can also draw natural corrolories –

crpc 125 filed, then divorce filed, interim in crpc 125 granted, 24
hma filed – in response, 24 hma judge should just continue crpc 125
amount, unless there is change in circumstance and the crpc 125 case
should stop since divorce has been filed, or at least adjourned till
the date divorce is dismissed. ideal case, as soon as crpc 125 is
filed, if hindu, judge should say – go file 18 hama.

there are many corrolories which one can think of which we can write
in the PIL itself.

so we ask the court to clarify on these thinks and “write on stone”
so to say to lower court judges are clear about the position of the
law which has changed over time but not interpreted correctly thus
leading to multiple lawsuits wasting the precious time of already
overloaded court blah blah ..

NO MAINTENANCE FOR WIFE IF SHE CANNOT PROVE CRUELTY

Justice V R Kingaonkar of the Bombay High Court ruled this week that a husband did not have to pay maintenance to a wife who left her matrimonial house alleging cruelty and harassment but could not prove the same before a magistrate.
click here to read

click here to read judgement