LAKE CHARLES, LA (KPLC) -
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QUESTION: I have been paying child support directly to my ex-wife for several months. I have receipts for payments. Support Enforcement now tells me that the receipts are not good, and since I haven’t paid through them, I have to pay back child support. Is this right?
ANSWER: Technically, the payments are owed to Support Enforcement and not to the mother. However, it may be possible to defeat the Support Enforcement position if the payer can show that that mother requested it or that the money directly benefited the child.
Louisiana case law has held that Child Support payments, that are ordered to be paid through Support Enforcement, but instead are paid by the obligor parent directly to the obligee parent do not entitle the obligor to an offset or credit unless the payments were made for the direct benefit of the child(ren) and at the request of the obligee. On the other hand, if the ex-wife wants to waive the arrears due to the fact that the other parent made direct payments, she may have the arrears waived.
See New v. New, 5th Circuit Court of Appeal of Louisiana whereby the Court held; “Former husband was not entitled to offset past due child support with tuition payments made for direct benefit of children or payments made to department stores, credit cards, and utilities on behalf of wife in absence of evidence that disputed payments were made both for direct benefit of children and at request of wife.”
In Dubrac v. Dubrac, the Louisiana Supreme Court reasoned that parents may agree to suspend support payments under certain circumstances: such that if the parties clearly agree to a suspension of the payments, and such agreements does not interrupt the child’s maintenance or upbringing or otherwise work to his detriment, the agreement should be enforceable. Also, see Casey v. Casey, 819 So.2d 1108, (La.App. 4th Cir 2002), Conversely, the husband may not likely receive an offset or credits for payments made directly to his ex-wife unless he can prove it was for the direct benefit of the child and at the mother’s request.
Seek legal counsel to err on the side of caution.
QUESTION: My husband and I married later in life. When we married, I moved into his house. He recently died, and now his sister is trying to evict me. Does she have the right to do that?
ANSWER: If the house is separate property (and not community property), and if the husband didn’t leave a will that granted his wife ownership, or usufruct or a lifetime right of use, then, probably, she no longer has a legal right to stay in the house and is exposed to being evicted. Therefore, the sister may likely have the surviving spouse evicted through proper court proceedings.
Pursuant to Louisiana law on Successions, in part, Civil Code Article 880, when a person dies intestate, that is in the absence of a valid testamentary disposition (Will), the undisposed property devolves by operation of law in favor of his: (1) descendants, then (2) ascendants, and then (3) collaterals, by blood or by adoption, and in favor of his spouse not judicially separated from him, in the order provided in and according with Louisiana law on Successions. The nearest in relations to any degree always exclude those of a more remote degree. (C.C.Art. 883).
QUESTION: My mother, who recently died, had a Texas will. She also owned a house in Calcasieu Parish. My lawyer says that the Texas will does not apply to the Louisiana property. What do I need to do?
ANSWER: The lawyer is partially right. A non-recognized will, whether it is from Louisiana or any other state, has no effect until it is recognized by a Louisiana judge as being valid. The viewer will need to have the Texas will recognized as a valid will by a Louisiana judge before it can have effect. The viewer will need to demonstrate to Louisiana judge that: (1) the Texas will is valid in accordance with the laws of the state of Texas, or (2) that it is valid in accordance with the laws of Louisiana. Once the judge is satisfied that the will is valid, then the probate / succession process can proceed normally. The process is generally referred to as recognition of a foreign testament.
Specific statutes are as follows: Pursuant to Louisiana Revised Statute 9:2401, a Will executed outside this state in the manner prescribed by the law of the place of its execution or by the law of the testator’s domicile, at the time of its execution shall be deemed to be legally executed and shall have the same force and effect in this state as if executed in the manner prescribed by the laws of this state, provided the will is in writing and subscribed by the testator. La. R.S. 9:2421-2423, a Will duly proved, allowed, and admitted to probate outside of this state, may be allowed and recorded in the proper court of any parish in this state, in which the testator shall have left any estate. If upon the hearing, it appears to the satisfaction of the court that the Will has been duly proved, allowed, and admitted to probate outside of this state, and that it was executed according to the law of the place in which the same was made, or in which the testator was at the time domiciled, or in conformity with the laws of this state, it must be admitted to probate, which probate shall have the same force and effect as the original probate of a domestic Will.
Nonetheless, the Texas Will may be recognized by a Louisiana Court in Calcasieu Parish because that is the parish where the house is located by having it admitted to probate in that court.
Disclaimer: The information furnished in this answer is general and may not apply to some situations. All legal situations are unique. No one should rely to their detriment on these answers. Anyone with a potential legal problem should seek the advice of a licensed attorney before taking any action or inaction. The answers provided are not intended to be specific legal advice and no attorney-client relationship is created between the SWLA Law Center and the viewers of KPLC-TV.