The Wonderful Bradley Amendment

The Wonderful Bradley Amendment

Bradley Amendment
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In United States law, the Bradley Amendment is the common name given to any of a number of amendments offered by Senator Bill Bradley, the most notable of which is the amendment to 42 U.S.C. § 666(a)(9)(c) which requires state courts to prohibit retroactive reduction of child support obligations.

The Amendment was passed in 1986 to automatically trigger a non expiring lien whenever child support becomes past-due.

* The law overrides any state's statute of limitations.
* The law disallows any judicial discretion, even from bankruptcy judges.
* The law requires that the payment amounts be maintained without regard for the physical capability of the person owing child support (the obligor) to make the notification or regard for their awareness of the need to make the notification.

But, like any other past-due debt, the obligee, typically a mother, may forgive what is owed to her.

When past-due child support is owed to a state as a result of welfare paid out, the state is free to forgive some or all of it under what's known as an offer in compromise.

The amendment was intended to correct a perceived imbalance between the power of the obligee (usually the mother) and the obligor (usually the father) during subsequent child support disputes. It had been alleged that a significant number of men were running up large child support debts and then finding a sympathetic judge, often in another state, to erase them.

The Bradley Amendment is credited with increases in the collections success of wealthy debtors including a New York plastic surgeon who owed $172,000, a professional athlete who owed $76,000 and a yacht company owner who owed $50,000. The Bradley Amendment standardizes the treatment of interstate child support disputes (estimated at 40% of all cases according to Geraldine Jensen, president of the Association for Children for Enforcement of Support).

According to Sherri Z. Heller, Ed.D, Commissioner of U.S. Office of Child Support Enforcement, the child support system collects "about 58% of current support due." The US Department of Health and Human Services estimates that 68% of child support cases had arrearages owed in 2003 (a figure up from 53% in 1999 - however this information is based on data supplied only by the custodial parent so it be viewed with extreme doubt). Some believe that the process can never collect the full amount because a high proportion of obligors are unable to make the required payments. According to Ford Foundation Project Officer Ronald B. Mincy, between 16 percent and 33 percent of obligors are "turnip dads" (obligors earning less than $130 a week). According to one study 38% of non-custodial parents not paying child-support said they lacked the money to pay.[1]

The Health and Human Services numbers above omit closed cases. Typically, cases are closed after four years of inactivity. Open or closed, past-due child support automatically triggers a non expiring lien.

[edit] Controversy

The Amendment has been a controversial law and has resulted in several notorious examples of unintended consequences including:

* A veteran of the first Gulf War who was captured in Kuwait in 1990 and spent nearly five months as an Iraqi hostage being arrested the night after his release for not paying child support while he was a hostage.
* A Texas man wrongly accused in 1980 of murder. After 10 years in prison, the man sued the state for wrongful imprisonment. The state responded with a bill for nearly $50,000 in child support that had not been paid while in prison.
* A Virginia man required to pay retroactive child support even though DNA tests proved that he could not have been the father.

In September 1999, Marilyn Ray Smith, the Chief Legal Counsel for the Massachusetts Department of Revenue, Child Support Enforcement Division gave the following testimony before the US House of Representatives.

As you know, under the Bradley Amendment enacted by The U.S. Congress in 1986, a child support obligation becomes a judgment by operation of law as of the date that that it is due and unpaid. In addition, under Section 368 of PRWORA (42 U.S.C. 666 (a) (4)), an administrative lien also arises by operation of law against any unpaid child support. It is therefore not necessary to return to court after each payment is missed to get past-due support reduced to a judgment in order to obtain a lien or enforce a judgment. This means that a child support agency can move quickly to seize income and assets of a delinquent noncustodial parent without first passing through a judicial or quasi-judicial hearing process."

In 2003, Keith McLeod, author of The Multiple Scandals of Child Support, testified before the Committee on Ways and Means that

"The 1986 Bradley Amendment to Title IV-D forbids any reduction of arrearage or retroactive reduction for any reason, ever. This reinforces the approach that inability to pay is no excuse. Needless to say, there are endless stories of men who are now crushed by a debt they will never be able to pay because they were:

* In a coma
* A captive of Saddam Hussein during the first Gulf War
* In jail
* Medically incapacitated
* Lost their job but were confident of another so did nothing until it was too late
* Did not know they could not ask for retroactive adjustments and waited too long
* Cannot afford a lawyer to seek adjustment when adjustment was warranted
* Wouldn't use the legal system even if they could, feeling it alien from their world, so don't ask for a reduction when the legal establishment expects them to.

Some say this measure is a violation of due process and cruel and unusual as it removes the use of human discretion from dealing with individual cases, not to mention removing human compassion. But non-custodial fathers do not have the money to fight a constitutional case."

As of 2004, the Bradley Amendment was being challenged as unconstitutional and was the subject of a repeal effort.

* February 2006 the court case has been dismissed and Congress has made no visible effort to reform the Bradley amendment.