Friend or Frenemy of the Court: Opting in or out for support

By: Marie E. Matyjaszek

Law Office of Robert Matyjaszek

The Friend of the Court (FOC) is a mystifying institution that people seem to either love or hate, without any middle ground.

When you're awarded child support or spousal support, you have to choose to either opt-in or opt-out, unless you are a recipient of governmental assistance, in which case the choice has been made for you - you're in.

It pretty much feels like the clock ticking down on Final Jeopardy - people are sweating under the bright lights, deciding how much they want to wager and if they're going to risk it all, and wondering why Alex looks so smug.

Finally, time is up, and your answer boiled down to the fact that you didn't trust your ex to pay you directly, so you've opted in to the FOC system. What does this mean exactly?

Well, the Michigan State Disbursement Unit (read: giant support clearing house in Lansing) will attach an income withholding order to your ex's paycheck, take out the monthly amount of support he's supposed to pay, re-route it to the FOC of the county your case is in, and deposit it into an account of your choosing.

He will also pay nominal service fees to have the FOC manage the account, which total $42 per year.

Depending on how your ex is paid, the monthly support amount may be broken down into two or more separate deposits into your account each month. This has frustrated some of my clients when they are relying on that money to pay daycare or other expenses on a certain day.

If your ex falls behind in payments due to a loss of income, failure to report his employment change, or some other reason, the FOC is supposed to timely bring enforcement action when the arrearage is more than a month late.

However, the ginormous volume of cases that the FOC manages makes it easy for your case to slip through the cracks, so you should always let the FOC know you're not getting your money by filing a written complaint promptly.

If your case is within the FOC system, it can also set hearings on issues like support, health care contributions, parenting time, custody, or other matters that relate to your case.

The bonus is that if you don't like the FOC ruling, you can generally appeal these to the actual judge assigned to your case and prepare yourself for round two.

The FOC offers a bevy of services that are simply too numerous to mention, and like any other governmental institution, it's understaffed and underfunded.

If you don't want to use the FOC, you and the opposing party must both elect to opt-out of the system. Some people just don't want everyone knowing their business - that's usually why they're getting divorced anyways.

The biggest consequence of opting out is that you are no longer entitled to any FOC service or enforcement. If you have a parenting time complaint, or medical reimbursement issue, you have to go directly to the court which probably means you're going to have to use your tax refund on an attorney and not that new hot tub you wanted (and you'll get really aggravated when you see your attorney picking out his new hot tub).

And, there's no guarantee that your ex's support is going to magically show up in your bank account when it's supposed to if you opt to have him pay you directly.

Some judgments or orders provide that if the payer is behind a certain amount of months in support the parties will automatically opt back in to the FOC, but you have to file paperwork to do so; you can't just show up, toss your papers to the person at the window and say "I'm in," although I don't doubt that this has actually occurred before.

I have to work with the FOC on almost a daily basis, and unless it's blatantly obvious that the payer isn't going to send those checks, I try not to influence my client's decision to opt-in or opt-out.

Everyone's experience with the FOC is different, especially if you're an attorney versus a party to a case.

Let's face it, I ultimately get to sit on the fence - I'm just trying to prevent any splinters.

The author is an associate attorney at the Law Office of Robert Matyjaszek PLLC, Jackson, Michigan.

She can be reached at (517) 787-0351 or by emailing her at matyjasz@hotmail.com.

Published: Mon, May 17, 2010

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