By Jennifer M. Paine
Attorney, Cordell & Cordell, P.C., Detroit office
There are plenty of costs for parents who dodge child support payments, most of which parents already know. Your judge can send you to jail, have a sheriff boot your car, order your driver’s and professional licenses revoked, and allow the State to garnish your wages, tap into your bank accounts and collect your income tax returns, to name a few. But other costs for even unintentional conduct go unknown, or unconsidered like urban myths, until they stare you in the face when you are ready for a break – passport denial and revocation.
Could the Secretary of State deny or revoke your passport when you have child support arrears? Yes! Here’s more:
Shouldn’t I get a hearing before the Secretary of State denies or revokes my passport?
Yes, and you do.
While international travel is a “liberty interest” and the government may not deprive an individual of property or liberty without due process of law, all that due process requires is notice and an opportunity to be heard commensurate to the circumstances. The government must provide “notice reasonably calculated, under all of the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v Central Hanover Bank & Trust Co., 339 US 306 (1950). The opportunity to be heard need not be before the action or before every body that takes action.
The passport laws limit the non-payor’s opportunity for federal review. However, “there is no authority [for] the contention that due process can only be satisfied if a federal agency rather than a state or city agency provides the notice and hearing.” Weinstein v Albright, 261 F3d 127 (2d Cir 2001). Instead, the passport laws require States to provide notice and an opportunity to be head before the State agency before the State certifies the arrears to the Secretary of Health and Human Services. All courts deciding the issue have held that this framework assures the non-payor a meaningful opportunity to be heard because the State, not the federal government, has the power to determine the actual amount of arrears, retroactively modify arrears, conditionally waive arrears or otherwise grant remedial relief in lieu of certifying the arrears for passport revocation or denial. Indeed, the passport laws reduce the federal government to a ministerial role. Id.
Therefore, requiring the federal government to also provide the non-payor with a hearing would be futile. Instead, the non-payor must address arrears with the State agency handling them. And promptly, too.
What can I do if my passport is denied or revoked?
What can a support non-payor who cannot obtain a passport do? Here are some suggestions:
Motion to Reduce Child Support: If you cannot pay the current amount, consider filing a motion to reduce it. The standards and procedural requirements vary by State, but, in general, parents who genuinely cannot afford to pay (e.g., have lost a job) will receive a reduced amount or a long-term payment plan. You may even request to have your arrears reduced or discharged. Be sure to request that the court enter an order clearly stating how much in arrears (below the passport statutory amount) you owe, and be sure to send that order to the appropriate person(s) for a new certification to remove your name from the Passport Name Check System. Contact an attorney in your area for information about the rules applicable to you.
Three Year Support Review: By federal law since 1996, States receiving federal assistance must have child support review procedures to review orders every three years upon a payor’s or a payee’s request. In Michigan, where I practice, support payors and payees have a “one time pass” every three years to ask the Friend of the Court to review their current child support order. All they need to do is send a letter to the Friend of the Court to request it. Contact the court or child support administrator for your case to find out how your jurisdiction conducts these reviews Be cautious, however, because incremental differences may not be enough to modify the current order (in Michigan, we need at least 15% deviation), and you could end up paying more support if your ex-spouse’s income has deceased more than yours.
Have a Frank Settlement Discussion. Explain your financial predicament to your ex, sincerely and in depth. Ask for a settlement at an amount you can afford to pay, and explain that any other higher amount will force you into bankruptcy (if true). Support obligations are non-dischargeable in bankruptcy, and your ex may be left with a bankrupt payor who is not paying anything at all if you do not settle at a reasonable amount. Be sure to reduce any settlement to a written order, with the court’s approval and abiding all court rules and statutes for entering settlement agreements.
File a Grievance: If your child support agency simply has the records wrong, contact the State support administration and ask for grievance forms. These forms allow you to report the local child support administrator for handling your file poorly. You will not receive an extra financial benefit (e.g. money for your pain), but you will put the State on notice of the errors in your file.
File a Lawsuit: Beware, this option will not work in all States. If you paid support but your ex did not report it, consider a lawsuit or motion against her for fraud, misappropriation of funds, contempt of your child support order, credit against your arrears, or something similar. You will need to speak to an attorney who practices in your State to learn what options are available.
Whatever you do, do not let those arrears build up, and do not trust that your ex-spouse will “waive” support. The State certifies arrears, and the federal government denies and revokes your passport, no matter what your ex has to say, and no matter how desperately you want a break or how cheaply you can do it. If you wait, you could be out in the cold with no passport, scraping for cash to pay down arrears with penalties a very, very harsh winter long.
Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.