As if it isn’t hard enough for custodial parents to collect child support arrears, the New Jersey Appellate Division just decided a case in which it was held that the United States government cannot be held responsible for damages when it fails to pay support arrears   from payments due to an obligor. 

 In the recent case of Jacobson v. United States, Steven Tetz was ordered to pay child support to Mindi Jacobson, the mother of his child.   Steven was receiving disability benefit from the Social Security Administration (SSA) and the NJ office of child support ( the NJ state agency which is in charge of collecting child support) sent a garnishment order to the SSA. Steven fell behind on his child support payments, and in March of 2008 when he dies, he had arrears of more than $76,000. However, and here’s the kicker, in December of 2007 the SSA had given him a retroactive payment of almost $60,000. Needless to say, Steven did not give any of that to Mindi or his daughter.

 

When Mindi found out, she brought an action against the government, claiming that it owed her for the amount of arrears plus interest, attorney fees and costs for its failure to properly garnish the disability. She brought the matter under the laws, both state and federal that provide that a person or an entity that is responsible for the collection and payment of child support fails to withhold payment, it may be responsible for the amount it should have withheld.

Mindi first filed her action in Federal court. It was dismissed there, however, she was permitted to bring the action in State court, which she did. The government objected, in part stating that it had never received proper notice of the order. The trial court held that the US government was liable for the SSA’s failure to withhold the child support from Steven’s disability payments and that the state office of child support had properly served the order under state rules. The government appealed, essentially stating that the government is immune from liability, even if the failure to properly collect the support was negligent.

 

The Appellate Division agreed with the government, and in its decision, stated that government is protected by sovereign immunity. The court noted that while prior to 1997, there would have been liability on the part of the government, the regulations changed in 1997, and after that, there was an amendment which specifically provided that there could not be any damages assessed agains the US government. The Appellate Division never addressed the issue of whether the order had been properly served because at that point, it didn’t matter.

No question that this is a frustrating case. But, the take away from this is that even though the office of child support is charged with collection and enforcement of child support, a receiving parent must be increasingly vigilant. Certainly, there are times when situations such as this cannot be avoided. But when a parent obtains information that there may be a disability or other governmental award, it behooves them to contact their child support officer, or take steps to try and ensure that the government is aware of the support order
 

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