Questions--Served with Child Support Papers

[Cinderelly5507]

Not me, but my aunt... A little bit of background: This is in the state of WV... My aunt and her ex divorced over five years ago (not sure of the exact date)... He was ordered to pay child support on my two cousins (now age 15 and 16). He has not seen or spoken to the children since May 2009 (despite living literally around the corner in the subdivision). In April/May of 2010, he and his wife adopted a baby. Just recently, he quit his job, where he was making a six-figure salary. My aunt was served with papers from him because he has several issues he wants the court to grant him... off the top of my head, I know he 1) doesn't want to pay child support on the oldest child (who will turn 17 in October), 2) wants to lower payments on child support for the 15 year old, 3) does not want to have to provide insurance for either child, and 4) wants to be able to claim the children on tax returns. I want to help her, as to how she should respond. She was given a form to fill out, and she is to list his "points" and respond with her own. To me, it would make sense that she respond to them as 1) the age of emancipation in West Virgina is 18. However, since both children will be in high school after they turn 18, he should continue to support them through graduation. 2) I'm guessing the court will lower support since he quit his job??? However, since he has not seen the children in over a year, I think she should try to get back-child support based on the fact that she has had them 100% of the time. 3) Since he no longer has a job, how will he provide insurance? how should she request that he still provide it. His wife is the one who the children's insurance is through, and she is still working. However, his wife has no legal responsibility to them. 4) No way in hell should he get to claim them on his taxes... but how should she respond in legal terms? Any help or information anyone can give would be appreciated... these kids have gone through more than any kids should, and neither want a relationship with him. It's a very sad situation...


ETA: According to poverty guidelines (with current child support) she makes too much to receive legal aid... I'm assuming child support is considered income, right?

 

[luvmythree]

Having survived a divorce and having a few kids who don't want anything to do with their dad the only thing I can say is that it would be wise for your sister to see an attorney and figure it out.

I know for me and my divorce situation my ex is required to pay child support on all of my kids until they turn 18 or graduate from high school whichever occurs LAST. At least here child support is figured out on a fixed scale meaning that a certain % of his monthly pay is devoted to child support. If he were to quit or lose his job he could get out of paying for everything but as soon/if he were to get rehired anywhere I can go after him for back child support and alimony if I so desire.

In our divorce decree we share the kids so one year I get 1 child and he gets 2 and then the next year I get 2 and he gets one. Honestly an attorney would be the best person to help her and believe me I know how costly they are.

Good luck to your sister....divorce *issues* and sometimes divorce itself stink!

 

[DrCavin]

Best advice to give your Aunt, get a lawyer.

 

[Hannathy]

Best advice to give your Aunt, get a lawyer.

Agree 100% and DO NOT respond to anything, anyhow until having spoken to said Lawyer!!!!

 

[tinytreasures]

Agree 100% and DO NOT respond to anything, anyhow until having spoken to said Lawyer!!!!

Ditto
she needs a lawyer and have no contact at all, unless it is through her Lawyer

 

[Darcy03231]

Your aunt really should consult with an attorney that specializes in family law in her state.

Generally speaking, courts will not eliminate child support for children under 18 unless there are some special circumstances (like split custody). Some states the child support goes until the kids are 18 or graduate from high school, whichever is last and some, not many, child support can go through college.

There is no hard and fast rule about how child support is calculated. Each state has their own way of doing it. As far as quitting his job, most judges will take that into consideration in ordering child support. They could consider him to be voluntarily unemployed or underemployed and look at his current wife's income in determining child support. This is where a good family law attorney will be helpful.

In most states, as long as a parent is paying child support and is current, the parents split the tax deductions or alternate them if there is only one child. Again, this is where a good family law attorney will be helpful.

Good luck to her.

 

[SandrA9810]

As far as the insurance goes, who's policy would be the cheapest? If the mother can have good coverage under her policy through work, I'd say ask for an increase in child support to cover the insurance cost, since he's supposed to be the one paying.

How does he plan on raising a new baby if he can't afford the ones he has now?? It sounds like he's trying to pull the "well I have a kid now to take care of"... well duh, you have THREE children to take care of now.

What was the reason for leaving his job?? I could see the court lowering it if he was laid off or something. But if he quit his job to be a stay at home dad, then that's no excuse not to continue paying the same amount. If his new wife doesn't want to be paying for the other children, then she should have made him keep his job. Sounds like they're trying to scam out.

 

[RadioNate]

LAWYER. Period.

This is not something she can or should do on her own. Call legal aid if you have to but do nothing without a lawyer!

 

[cabanafrau]

Previous posters are right, she needs a good lawyer first.

I'm not certain what the differences might be outside of Michigan, but I'd suspect overall it's fairly similar.

If he quit his job, that's not a qualifying change of circumstances to reduce his support obligation.

If he was required to provide healthcare in the divorce decree, quitting his job does not negate this responsibility.

I've never heard of a child being "close enough" to the age of majority for the discontinuation of support obligation.

The tax deduction should have been spelled out in the settlement agreement. Often it's the parent who has primary custody who gets it & it can also rotate from year to year. A reduction in child support could open this issue for reconsideration, but not likely in his favor.

His newest child doesn't reduce his obligation of support to his older children & in Michigan the circumstances you've described would pretty much insure that it not be considered in your aunt's case.

 

[Cinderelly5507]

First off, thank you to everyone who has responded. She contacted a lawyer who has great reputation for these types of things, but she is not taking on new cases. I am going to push her to contact another attorney, even though she does not need one to respond. I think it is what she needs to do

As far as the insurance goes, who's policy would be the cheapest? If the mother can have good coverage under her policy through work, I'd say ask for an increase in child support to cover the insurance cost, since he's supposed to be the one paying.
Thanks for pointing this out. Right now, the insurance the children have through him/his wife is evidently horrible. They both wear glasses and one needs braces, but the vision and dental is ridiculous!
How does he plan on raising a new baby if he can't afford the ones he has now?? It sounds like he's trying to pull the "well I have a kid now to take care of"... well duh, you have THREE children to take care of now.
This was our thoughts too! He ADOPTED a child!! (Now, I will try to be "politically" correct that his new wife could not have children and wanted one, but he HAS two that she didn't care for!
What was the reason for leaving his job?? I could see the court lowering it if he was laid off or something. But if he quit his job to be a stay at home dad, then that's no excuse not to continue paying the same amount. If his new wife doesn't want to be paying for the other children, then she should have made him keep his job. Sounds like they're trying to scam out.

While we don't know for sure, it is apparent that he was demoted months ago, and decided he didn't like being told what to do... Again, just hearsay.

LAWYER. Period.

This is not something she can or should do on her own. Call legal aid if you have to but do nothing without a lawyer!

I will tell her about legal aid. That is her main concern--how to pay for a lawyer. Her finances aren't great, but I think *NOT* having a lawyer will cost her more in the long run.

Previous posters are right, she needs a good lawyer first.

I'm not certain what the differences might be outside of Michigan, but I'd suspect overall it's fairly similar.

If he quit his job, that's not a qualifying change of circumstances to reduce his support obligation.

If he was required to provide healthcare in the divorce decree, quitting his job does not negate this responsibility.

I've never heard of a child being "close enough" to the age of majority for the discontinuation of support obligation.

The tax deduction should have been spelled out in the settlement agreement. Often it's the parent who has primary custody who gets it & it can also rotate from year to year. A reduction in child support could open this issue for reconsideration, but not likely in his favor.

His newest child doesn't reduce his obligation of support to his older children & in Michigan the circumstances you've described would pretty much insure that it not be considered in your aunt's case.

Thanks so much!

 

[Colleen27]

He doesn't have a pray on count one - the court will certainly continue support until 18 or high school graduation, which ever comes later, as that is the well-established standard for definnig adulthood in these cases.

He might have a shot at having support reduced, but it isn't a given since it seems he voluntarily quit his job. In my state, that wouldn't be a permissable reason for review/reduction unless there are extenuating circumstances like medical problems that led to his resignation.

Three and four are a little more into grey areas. His options for insuring the kids without a job and the cost of those options will effect the outcome, as will her options for insuring the kids. My ex was able to get out of that provision in our support agreement based on the fact that insuring DS created a "financial hardship" (like 1/4 of his income) and the fact that we were able to add DS to our plan at no additional cost because we already had a family plan.

As far as who claims the kids for tax purposes many courts will order the parents to alternate years. If this comes up, she should insist on wording that only allows him to claim the kids if he is current on child support payments. That was probably the best piece of advice my lawyer offered - our court order allows my ex to claim DS in even-numbered years if and only if there is no child support arrearage, so in effect he doesn't get to claim DS at all.

Good luck to her in this. Child support issues suck, and parents who think they should be able to shake off their responsibilities to their children because they have moved on and started a family with someone new suck even worse.

 

[design_mom]

This was our thoughts too! He ADOPTED a child!! (Now, I will try to be "politically" correct that his new wife could not have children and wanted one, but he HAS two that she didn't care for!

The point is... he now has THREE children he's responsible for. Adding a third child doesn't lessen his responsibilities to to the first two. However, whether the child was added by birth or adoption (and the stepmother's fertility) is irrelevant.

I hope your aunt can find a good lawyer. It sounds like her Ex is a total jerk!

 

[Jennasis]

She needs a lawyer, not the DIS. I know how pricey they can be, but there are options. Legal Aid can help. Heck, call social services and see if they can point her in the right direction.

 

[Bren's Mom]

I agree that she needs a lawyer.

What her divorce/custody agreement says will have a big impact on the result, though.

If it says that he will pay support through 18, or the end of high school, whichever occurs later (which is common) then he's going to be hard-pressed to get out of that.

Whether or not their agreement is modifiable. (My dh's divorce agreement states it is non-modifiable as to alimony or child support; she can't ask for more, he can't petition for less. Period.)

What their existing written visitation agreement is will have an impact on whether she can ask for/collect any back extra support. If he's supposed to have the kids every weekend plus every other vacation and half the summer, and hasn't seen them at all then maybe. If it's looser than that then maybe not.

As for the tax returns; both parents are supporting the kids, many agreements state they alternate years (this might even be required in some states, not sure). Again, what their current agreement says is going to have a big role.

 

[ClarabelleCowFan]

Get an attorney - I know you have already heard that a zillion times but it is true. We are going back to court again with DH's ex over issues resulting from him not having his own attorney when they got divorced.

Each state has different laws regarding age of majority, etc... so the attorney in that area will know the ropes. Just because the ex has a "new" family doesn't mean he pays any less to his children from his first marriage. He is required to pay until the age of majority (usually 18 and/or high school graduation). Insurance and tax issues vary by state and what their divorce decree stated.

The ex quitting his job doesn't mean squat either unless there were some pretty extenuating circumstances. The court considers that willfull underemployment and doesn't look too kindly upon it. He will still be expected to maintain his child support payments.

In some states there are court appointed mediators that can work with both parties to negotiate an agreement without the expense of attorneys but it requires a level of maturity on both sides (not sure if the ex would qualify) to be able to hammer out an agreement.

Good luck. Family court sucks. There are no winners except the attorneys.

 

[Shmily1]

I agree with the attorney part and even if she has to get an attorney that isn't as good as the one she called, it would be better than nothing. I love the fact that he hasn't paid child support but wants to go to court to lessen it! The judge will love it too. In GA, you have to pay CS or go to jail until it's paid so that would be him turning himself in!

As to him not having a job, DStepS had to pay CS even while he wasn't working. I guess in her case it would have to come out of his dear nuwife's money. If your aunt's original decree stated she didn't have to pay for insurance, then it's going to take some major convincing to get the judge to change that!

Oh, I have two in college that are still getting CS from their dad, even though he didn't pay for 10 years so CS is definitely not new.

 

[wvjules]

What part of WV? My second attorney (had a different one for my divorce) was ummm, short-tempered(?), but that's what I wanted. I wanted the pitbull and I got the pitbull. Wouldn't have had it any other way. If she's in Morgantown I'll PM you his name if she'd be interested but he wasn't cheap!

She should NOT answer any of these charges until she consults an attorney. Doing so could be disasterous for her and the children's future.

 

[Cinderelly5507]

What part of WV? My second attorney (had a different one for my divorce) was ummm, short-tempered(?), but that's what I wanted. I wanted the pitbull and I got the pitbull. Wouldn't have had it any other way. If she's in Morgantown I'll PM you his name if she'd be interested but he wasn't cheap!

She should NOT answer any of these charges until she consults an attorney. Doing so could be disasterous for her and the children's future.

Unfortunately, she's in the eastern panhandle, but I thank you for the offer!

Seems the consensus is that she needs a lawyer! I agree... Thanks for all the answers! I know the DIS isn't in any way, shape, or form a legal advice forum or lawyer, but it helps to hear others' opinions, ideas, and experiences. She is coming to visit me tomorrow evening and I plan on showing her this thread.

 

[SandrA9810]

Well it's also good to hear other stories and such. If she finds a lawyer who doesn't push for what she wants, then she'll need to move on. At the same time, if she doesn't know what she's entitled to, the lawyer might not go for everything possible for the kids.

If the children are already college bound and know where they want to go, she might even ask that the support continue while they're in college full time. If the new wife has a substantial income, I don't know if the kids will have to put that as their father's income on the fafsa. Which could very well hurt their chances of scholarships and grants, and raise the EFC (family contribution). And then mom/child gets stuck with the whole bill. Just something to look into.

By the end of it, the father might have regretted the whole decision...

 

[CharityLynn]

I'm in Michgan like a previous poster and I really can't add anything new to this conversation except in the Tax papers the person who claims the children must have the child living with them a certain amount of time therefore claiming a child that has not lived with you more than 6 months of the year would be illegal, would it not?

I wish your Aunt luck, I really hate dealing with Child Support, my ex owes currently $6000 in back child support.