Dear Jeff & Andrew:
I have problem concerning a payment of back child support to my ex-wife. I had never missed a payment until I remarried and had two other children. I am doing my very best to support my current wife, our children and pay as much child support as I can. However, I am falling further and further behind. Now I am afraid that my former wife will take me back to court to try and put me in jail. Am I entitled to a reduction in support so I can support my current family?
It is not as though your child support obligation should come as a big surprise. Since you had a child support obligation to your ex-wife before you re-married and then decided to have more children, the court is going to be somewhat reluctant to lower your child support.
You have probably heard of the phrase “first in time, first in line”; that is the basic position the court is likely to take. The statutory computation of child support does include a credit for each additional child living with you, so the fact that you have had two more children may very well impact the overall child support guidelines. Whether or not it will create a big enough change for the court to lower your support remains to be seen. It’s time to run a few child support calculations to see if you get any help.
Dear Jeff & Andrew:
In my divorce I agreed to take a little less child support with the understanding that my former husband and I would each pay one-half of the childcare. Because we do not use daycare in the summer, he did not want the cost to keep coming out of his check. I assumed he would pay his half. Frankly, he has not paid much of it over the past year and he recently filed for bankruptcy wiping out his share of back expenses.
Can I take him back to court to re-adjust the child support to add in the daycare expenses? Is that something the court is likely to do?
Absolutely. He will probably be surprised to learn that his bankruptcy will have no affect on his obligations relative to the support of his children. We assume that you made payments to the daycare facility to keep your children enrolled there. As your agreement provided that each party pay one-half of the daycare expense, you still have a valid claim against him for violating the order.
You can cite your ex-husband for contempt of court for his failure to pay his half of daycare expenses. Furthermore, since he has shown that he is not capable of making direct payments for the benefit of his children, you may ask the court to increase his child support to make up for his share of future expenses. The court’s primary concern is for the wellbeing and care of the children and ensuring that they are enrolled in the daycare they need is going to be a top priority.
Dear Jeff & Andrew:
I have been living in a stressful situation for years as we have a disabled child. My husband has informed me that the stress of our situation has become too much for him to take and that he wants a divorce.
We can agree on most things but have a big argument when it comes to support for our son. We will have to care for this child forever although there will be some public assistance. He says he has no obligation to support after the child’s 18th birthday. I disagree. Who’s right?
Much of our answer depends on the extent of the disability. Parents of a mentally or physically disabled child who is incapable of becoming self-supporting have a duty to provide support beyond the normal age of majority. That obligation will be ordered by the court.
Unless the two of you agree, the court must make the decision as to the support order, much as they would in any other case involving children. The court may order that certain other expenses, such as uninsured medical expenses, in-home care and special education costs, be divided in an equitable manner between you and your husband. We think it is very important for you to consult a good lawyer to make certain that your spouse accepts his share of the financial burden.
Dear Jeff & Andrew:
When our son turned 18, I closed the bank account I maintained for the purpose of paying child support to my ex-wife. She recently contacted me and said that I was behind in support. When I told her that our son was no longer a minor, she said that I should review our divorce papers which, somehow, extended my responsibility by almost a year because he has not graduated from high school.
Frankly, I thought that I no longer had to pay child support once the boy turned 18. I honestly believed the divorce papers must be wrong because I have never heard of any paying for children after they reach the age of majority.
Can you advise if my ex-wife is wrong so I may tell her to get off my back?
It might have been a good idea to read the papers you were about to sign... before they were signed. However, it would not have changed your legal obligation. It just wouldn’t have come as such a surprise.
Your divorce papers merely reiterated the statutory language regarding child support, which says that a child is emancipated for child support purposes once he has turned 18 and completed high school (whichever occurs last). Your papers probably also say that the support obligation will terminate when your son turns 19, even if he has not graduated from high school.
The good news is that you are lucky that you were only contacted by your ex-wife. The Child Support Enforcement Agency would probably like to talk to you as well. Telling your ex to get off your back is probably not the smartest thing to do either.
Dear Jeff & Andrew
When I was divorced several years ago, my wife wanted me to agree to pay for the college education for our two children. My lawyer insisted that I condition the payment on my ability to pay as he said that was the only way I could have any protection if my income declined.
Although my income has stayed about the same over the past several years, my expenses have increased and my assets are substantially less than they were before. My former wife has asked me to pay for our son to attend college this fall. I simply do not have the money to pay and she has threatened to take me back to court. Can a judge order me to sell my remaining assets in order to make the payment? I simply do not know what to do so I am looking to you for some suggestions.
Your lawyer was smart to make that suggestion because the court can and will enforce an unconditional obligation to pay if it was agreed upon by the parties at the time of their divorce. This is true even though the judge could not have ordered you to pay anything toward college expenses for emancipated children. As a consequence it is not always wise to enter into those agreements in the first place.
The issue is in defining your “ability to pay”. We do not think that you have to show that your income has gone down. Maintaining the same level of income and suffering an increase in expenses and a decrease in net worth may lead the court to find that you do not have the ability to pay. Will the court look at why and how your expenses have increased and the value of your assets has decreased? You bet. It is time to go back to your lawyer to review the facts and circumstances that the court will want to consider, so that you can proceed in a manner that best protects your interests.
Dear Jeff & Andrew:
When I was divorced a few years ago, I was making approximately $125,000 per year selling real estate on commission. Now that the economy has turned so bad, my income has been reduced substantially. If things keep going this year the way they are currently headed, I will make less than $50,000 total.
I find it hard to believe that I will be able to get back to my previous income level at any time within the next couple of years. Accordingly, I would like to look for a different job rather than rely on commissions. I told my former wife that I will have to reduce the amount of money I am paying her for both spousal support and child support. I also told her about my plans to change jobs.
My ex-wife said that if I voluntarily leave my current position, it will be something that I have done as a voluntary choice and that I will not be entitled to any reduction in my payments. I cannot believe a court would penalize me because the real estate market has tanked. The position I am thinking of accepting will pay me a salary of $80,000 in the first year and will give me the opportunity to see increases based on my own productivity.
I think I should be entitled to get a reduction. If my ex is right, I am going to be in a whole world of hurting no matter what I do. What do you guys suggest?
You may very well be entitled to a reduction and your first step ought to be to file a motion to seek relief. The court cannot make a retroactive modification of your support obligation so the day on which you file the motion is the first day any reduction can be effective.
Changing your employment does not automatically mean that you are not entitled to relief merely because the change is voluntary. Certainly, the impact the economy has had on home sales is nothing you caused. If your income is going to be substantially reduced because of the economy (and not by your choosing), it sounds like you are seeking a change in employment to try and make more money, not less. The law regarding voluntary changes in employment is meant to stop those who want to cheat the system (and their children), not to punish those who are doing everything they can to ensure that they are able to best meet their financial obligations.
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