Changing child support.

[Matt]

Divorced mid-2008, kids now S14 and D16.

At that time, I had a history of high incomes, but had quit my job to watch the kids.  Then I found out that the false DV accusation by my wife would prevent me from getting interviews in my field.  Since then, I've done consulting work, and I'm now very busy, but making very little money - less than she makes.

She wasn't working then but she has a professional degree so some income was "imputed" to her, and a bigger amount was "imputed" to me.  Now she has a government job - not a lot of pay, but good benefits and steady.

I had agreed to pay child support.  The court order says 50/50, but they spend more time with me.  I fell behind on child support, and on Monday we were in court for an enforcement action.

I didn't fight it - agreed with all the math - agreed to begin paying starting immediately, a little more per month than I was paying before, to catch up.

Then I got to thinking, "Why the heck am I paying her when she makes more than me and the kids are with me most of the time?"  What really triggered me was the court papers referring to her as the "custodial" parent and me as "non-custodial".

From me to ex today by e-mail:

I’m going to file to change child support, and if you want to avoid the hassle of that process, we could file jointly:

•   In reality, you make more money than me, at least for the last 18 months or so.

•   You also have medical benefits.  I have to buy them.

•   The documents say you are “custodial parent”, but that is not true.  In fact we have joint custody, and the kids spend at least as much time here as there.

•   Putting that all into the state guidelines, it would result in you paying me child support, at least from late 2011 through today.  Probably about $150/month.

•   If I file, I will document all the above, and ask for child support retroactive to September 2011.  $150/month for the last 18 months = $2,700, plus $150/month going forward.

•   If you would prefer to avoid that process, and file jointly, and if we file by April 15, I would agree to end child support altogether – nothing owing by either of us, for the past or for the future.  Otherwise I will file as indicated above, using state court guidelines, and expecting to receive child support from September 2011.

Please get back to me by the end of March, and if we agree to file jointly let’s get that done by April 15.  In the meantime, I’ll pay today and again by the first of April, as I agreed yesterday.

Her response:

I have brought to their attention that the wording is incorrect regarding custodial parent - they said that is just how it appears in their system but doesn't change any of the original court order.

My medical benefits also cost me $$ but is taken out of my wages.

I cannot file jointly with you as we do not live together and I have already filed my tax return for 2012.

I don't think you would prevail asking the Court to change the order to make me pay child support.  Historically you have had a higher income than me.  Your assets reflect that difference (i.e., you own your own home - your vehicle is about 10 years newer than mine, etc.)  I live in subsized housing which is based on my income.

From me:

“Custodial parent” – OK – just semantics I guess.

“File jointly” – I did not mean file tax returns.  I meant if you and I agree on the change to child support, and together file that with the court, then it would be settled.  If we take that path, I am willing to agree to no child support paid by either of us.

The way the guidelines work – same as we did in 2008 – they look at current income and expenses, not how old your car is or other stuff.  If you make more than me, and the kids are with me at least half the time, the calculation will show that you pay child support to me.  It won’t make the person that makes less pay to the person who makes more.

I’m aiming to have this filed early April and resolved by the end of April.  If you want to do it jointly, let me know by the end of March, or I’ll file it myself in early April.

I doubt I'll hear more from her on this, til I file something or show her what I'm ready to file.

[marbleloser]

Personally,I wouldn't have emailed her anything.I would have consulted an atty,gave them the facts,and filed for modification.

Have you kept a journal of overnights Matt? Can you document that you have the kids more often?

You're right that it's crazy for you to be paying when the kids are with you majority time.Asking for back cs is fruitless,imho.You paying when you shouldn't be will be considered a "gift".

[marbleloser]

... .  and even if you have joint custody,someone has to be custodial(primary) parent.Joint custody can mean "every other weekend" as far as time is concerned,or it could be "50/50" with her as custodial.The non-custodial parent still pays support,so it's not just a error.Since you agreed to pay support,she was given title of "custodial".

You need to get that changed.

[Matt]

Personally,I wouldn't have emailed her anything.I would have consulted an atty,gave them the facts,and filed for modification.

Well I really don't have the time or energy to do this, and I wasn't going to... .  

What really got to me is that she brought a couple members of her family court yesterday.  Up til then I was just going to view this as an annoyance.  That made me think, "Why am I doing this?"

In the past, when I proposed a solution to a legal issue, she reacted negatively - all full of fight - but then when she saw the writing on the wall, she settled.

Have you kept a journal of overnights Matt? Can you document that you have the kids more often?

I have a bunch of e-mails, so I can make a spreadsheet showing they are with me more.

You're right that it's crazy for you to be paying when the kids are with you majority time.Asking for back cs is fruitless,imho.You paying when you shouldn't be will be considered a "gift".

Yeah... .  but as it is, I owe some.  I'm hoping that they would just consider it a wash - nobody owes from before, and nobody pays going forward.

[Matt]

... .  and even if you have joint custody,someone has to be custodial(primary) parent.Joint custody can mean "every other weekend" as far as time is concerned,or it could be "50/50" with her as custodial.The non-custodial parent still pays support,so it's not just a error.Since you agreed to pay support,she was given title of "custodial".

You need to get that changed.

I don't think that's how it is in my state.  According to my lawyer, 50/50 is 50/50.

But if you're right - if one parent or the other needs to be "custodial" - it should be me, and I won't compromise on that.  Nothing in the court order says she is custodial.

[marbleloser]

What's the age of majority in your state?

[marbleloser]

Ahh! That's different if the decree doesn't name her as custodial then.Your state is genuine 50/50 with no primary then.You're in luck 

[Matt]

What's the age of majority in your state?

18.

[Matt]

Another piece of the puzzle - maybe not relevant to the court... .  

SD23's biofather paid more than $100,000 in child support.  None of it went into a college fund.  Biodad also saved nothing for her college and did not help with it.  I had a small fund I had set up, and that's all the college money we had to give her.  She got into an Ivy League school, got a full scholarship, and graduated last year.

What I learned from that was that every penny given to the kids' mom stays with her.  None of it is invested for the kids.

[marbleloser]

College is usually seperate from child support.Child support is to go towards the kids expenses now,albeit mom/dad can spend it as they wish.College is for after age of majority,so it's up to the parents to set up seperate funds for that,or pay for it as the kids go,or not pay at all.It all depends on the decree.It's also hard to enforce even if it's set up for each parent to pay.

As for the age of majority on the kids being 18,you're two years away with one,and 4 years with the other. Calculate how much you'll be saving in cs over those years to see if it's worth going to court over.

[Matt]

Yeah, I'm only mentioning the college issue to show that the money I give her isn't really "child support", it's alimony by another name.  (I paid alimony for 2 1/2 years too.)

I'm hoping I can do this without paying an attorney, so it pays off.

[DreamGirl]

Hi Matt.  

Every state is different, but where I live, you can't file for retroactive support when there is already an order in place. If there is a modification, it is from the day you file.

So, here, you're argument about the last 18 months wouldn't be relevant and not enforceable.

Also, there are rules about "potential income" when the child support is modified based on a person having a lower income. In my husband's case, she said she wasn't willing to work - her college degree said she could make X amount of money, and that was what was imputed in the child support calculation.

Does she have an argument about you not working to your full potential?

Also, is there an established pattern in your increased parenting time? My husband had to show the pattern over a 6 month period in order for it to have it have any weight. Otherwise, according to his attorney, it was just a "temporary increase" that didn't establish any need for child support modification.  

So, if you do file, I would definitely just get it all resolved in one shot. If you want the extra parenting time - go for it - based on the fact that they have been spending that extra time with you already.

However, you two seem to be okay at negotiation (with a little pushing on your part); I feel like mediation would result in what you ultimately want (same amount of pseudo-primary parenting time, no child support)? And she gets to stay at 50/50, which is what she wants.

I only ask because it would be nice is she would just agree with you... .  

~DG

[FamilyLaw]

Oops, typed too fast - in our state you can't get retroactive support if there is an order already in place.  You only get support back to the date of filing.  The threat of going back to Sept 2011 is empty.

Also "custody" doesn't matter anymore under the new laws - we now have jt. decision making authority and parenting time.  All that matters is the number of days in each household.  If the Court is using "custodial" they are using old terms and forms.

[Matt]

Every state is different, but where I live, you can't file for retroactive support when there is already an order in place. If there is a modification, it is from the day you file.

So, here, you're argument about the last 18 months wouldn't be relevant and not enforceable.

I see that FamilyLaw has answered this question - she and I are in the same state.  So I can make the argument about retroactive, but I can't hope for it to succeed.

(But my ex may not know that... .  )

Also, there are rules about "potential income" when the child support is modified based on a person having a lower income. In my husband's case, she said she wasn't willing to work - her college degree said she could make X amount of money, and that was what was imputed in the child support calculation.

Does she have an argument about you not working to your full potential?

Yes, here it's called "imputed income", and it was a subject when CS was initially established.  Neither of us were working then, and income was imputed to both of us - more to me.

I can show that my ability to work in my former industry was damaged by her false criminal accusations.  The company where I had worked - and could have returned - does not interview anyone who has been accused of DV for positions like mine.

I don't know if Ex will go there, but if she does, I can be well-prepared for that.

Also, is there an established pattern in your increased parenting time? My husband had to show the pattern over a 6 month period in order for it to have it have any weight. Otherwise, according to his attorney, it was just a "temporary increase" that didn't establish any need for child support modification.  

Our divorce was final 5 years ago, and for that whole time, the kids have been with me quite a bit more.  I can document that.  Not sure if it's changing over time, but if so, slowly in my direction.

I can show that over the last 6 or 12 or 18 months the kids have been with me much more.

So, if you do file, I would definitely just get it all resolved in one shot. If you want the extra parenting time - go for it - based on the fact that they have been spending that extra time with you already.

However, you two seem to be okay at negotiation (with a little pushing on your part); I feel like mediation would result in what you ultimately want (same amount of pseudo-primary parenting time, no child support)? And she gets to stay at 50/50, which is what she wants.

I only ask because it would be nice is she would just agree with you... .  

Yes, that's my thinking.  In the past, when I showed my cards, she threw a fit, and then, when she had to make a choice, she chose to settle.  But nothing got accomplished as long as she had more time to stall.

Hence my request that she reply this month.  If she expresses an interest in settling, we can work out the details.  If she doesn't, I'll have to see if I have the time and energy to follow through.  I probably will.

[Matt]

Oops, typed too fast - in our state you can't get retroactive support if there is an order already in place.  You only get support back to the date of filing.  The threat of going back to Sept 2011 is empty.

Also "custody" doesn't matter anymore under the new laws - we now have jt. decision making authority and parenting time.  All that matters is the number of days in each household.  If the Court is using "custodial" they are using old terms and forms.

Some of the papers said the "non-custodial" parent blah blah blah, and the "custodial parent" blah blah blah.  Referring to me as non-custodial.  I may note that in what I file, to highlight for the judge, that the parent who has the kids more and makes less is paying CS to the parent who has the kids less and makes more.

[ForeverDad]

I've come up against a wall of resistance in my case where no one wants to change "what is" by very much.  You may face something like that too.

Yes, every couple years it gets tweaked, but court and lawyers have been a major financial drain over the years.  My latest efforts in court have the GAL recommending changes to increase my parenting time, but perhaps not enough of a change to trigger a change in CS.  Right now we each have 7 days every 2 weeks.  My lawyer indicated I may have to get 10 out of 14 (15% change or more - a 2 day change is only 14.3% and too little) in order to justify a CS change.  If that happens then I who have custody would walk out with majority time and still be paying my ex almost as much as I did when I had alternate weekends.  (Of course, my ex opposes that and is even trying to become Residential Parent, not sure why she isn't seeking custody as well.   Maybe because this is just my supposedly minor modification of parenting time motion.  If she wanted custody then she'd have to file for a major Change of Circumstances.  Of course the hearing is still over 4 months away, anything can and probably will happen.)

[Matt]

I've come up against a wall of resistance in my case where no one wants to change "what is" by very much.  You may face something like that too.

Yes, every couple years it gets tweaked, but court and lawyers have been a major financial drain over the years.  My latest efforts in court have gooten the GAL to recommend changes to increase my parenting time, but perhaps not enough of a change to trigger a change in CS.  Right now we each have 7 days every 2 weeks.  My lawyer indicated I may have to get 10 out of 14 (15% change or more - a 2 day change is only 14.3% and too little) in order to justify a CS change.  If that happens then I who have custody would walk out with majority time and still be paying my ex almost as much as I did when I had alternate weekends.  (Of course, my ex opposes that and is even trying to become Residential Parent, not sure why she isn't seeking custody as well.   Maybe because this is just my supposedly minor modification of parenting time motion.  If she wanted custody then she'd have to file for a major Change of Circumstances.  Of course the hearing is still over 4 months away, anything can and probably will happen.)

I have no desire to go to the wall over this, and I don't think it will be necessary.  My hope is that I can prepare the papers, and either file them, or show them to Ex, and she'll settle.  Or if I file, she'll respond, and there will be a hearing, and it will be granted (not likely based on DG's and FL's feedback) or denied, or (most likely I think) the difference will be split.

One option is to ask for the moon - CS from her to me, and retroactive, and primary residential custody status, and anything else I can think of, that sounds reasonable to me.  And then hope for half of it, which might mean an end to CS, but I still owe what I owe for the past.  If I put in several things - and I'm not an attorney so I can be forgiven for not knowing what's likely - and half or two-third get turned down, I may still be better off than I am now.