XH wants to lower cs due to wk sched chng

[niaveincali]

What is the name of your state (only U.S. law)? California
I got hit with this new tid bit this week. Brief history; last year XH hired an attorney and filed for divorce. Finalized in Dec.2010. I did not have an attorney so we negotiated through his. XH set our visitation schedule around his work schedule, not my work sched., therefore no childcare expenses for him. Now XH is more than likely going from night shift to day shift which would be 4:30am to 4:30pm, unsure of days of week at this point, however certain weekdays (school days for our daughter) are inevitable.
This will change our parentage time and I will have our daughter more than the current 60%, which I am perfectly okay with. However now he is talking about lowering the cs amount he pays because he will lose his 2.00/hr night shift differential. In addition he would like for me to pay 1/2 of the childcare expenses whereas prior to this, he has never had to pay childcare expenses when I work.
Dislike sharing this, but I make 11.00/hr while XH makes 57.00/hr. If I pay 1/2 of the cc expenses and the gas for the additional commute to/from school, I come up negative income. XH is already paying under cs guideline. He lives very lavishly in our previous family home by himself with his son 2 nts a week and our daughter 2-3 nights per week. He pays way too much in mortgage, I suggested he should try to down size or do a loan modification. Could the Judge possibly order him to do so if he's "hurting financially" to the point that he feels inclined to lower cs amount? FYI-I did not get one dime for what was OUR home, not married long enough but lived together over 7yrs. (I know, irrelevant). Any thoughts or advice?

 

[mistoffolees]

Simply run the numbers:
Calculate Child Support

Child support is not really that subject to change based on people claiming that they need more or less due to whatever specific circumstance they want to claim.

The court is certainly not going to order him to downsize or refinance his mortgage. That is not within their discretion. The court will order a certain amount of child support and if Dad can't afford it, then it's up to him to do whatever he needs to do to meet his obligations.

It IS possible that you could get the court to impute the full wage (including shift differential) and ignore his child care expense if the schedule change is voluntary. If the change is not voluntary, then the court probably won't impute the higher amount.

 

[nextwife]

He pays way too much in mortgage, I suggested he should try to down size or do a loan modification. Could the Judge possibly order him to do so if he's "hurting financially" to the point that he feels inclined to lower cs amount? FYI-I did not get one dime for what was OUR home, not married long enough but lived together over 7yrs. (I know, irrelevant). Any thoughts or advice?

Marital property laws only apply to assets accrued DURING the marriage.

Is there equity in the house? Are both of you on the mortgage?

Because A judge CANNOT order his lender to either agree to a short sale or do a mod, and the lender may not agree to do so if doing so creates a loss for them. Many banks are not FNMA loan traders and are not required to accepted mod rules. If he qualifies, he may be able to adjust his mortgage via a refi. But if there is not sufficient equity, he may not be able to either refi nor sell.

 

[CourtClerk]

Why is he paying under guideline support? You should pay half the child care, but he should be paying guideline support based on the current timeshare. It'll even itself out.

 

[nextwife]

And of course, if you are underemployed, the court could also imput a fulltime income based upon what you could be making to you, if they are not now. So you should run the numbers, if the income differental is due to any voluntary time or income adjustment of yours.

 

[divona2000]

...he is talking about lowering the cs amount he pays because he will lose his 2.00/hr night shift differential. In addition he would like for me to pay 1/2 of the childcare expenses whereas prior to this, he has never had to pay childcare expenses when I work.
...I make 11.00/hr while XH makes 57.00/hr. If I pay 1/2 of the cc expenses and the gas for the additional commute to/from school, I come up negative income...He lives very lavishly...

He makes $57 an hour...but thinks that $2/hr will make a huge difference?

 

[xylene]

This is a textbook case for why divorce should always involve a lawyer.

It is an adversarial process.

You should get one now.

 

[niaveincali]

Why is he paying under guideline support? You should pay half the child care, but he should be paying guideline support based on the current timeshare. It'll even itself out.

He had an attorney, I did not. They imputed my income 500.00/mo over what a 40hr/wk, minimum wage job would earn me monthly. I do work part-time and make over minimum wage. My job allows me a consistant schedule and enables me to drop/pick up my daughter from school so niether of us have had to pay childcare. Additionally, XH added his son as child 2 that stays over at most 2nts per week and he does not pay child support for, however he and his attorney were adamant that this was legal but I could not claim my son as child 2 on my dissomaster (diagnosed as gravely disabled), that is 19yrs old and has lived with me his entire life. I have never recieved child support for him. There was another hardship added to his dissomaster (not sure what it was for). His attorney ran the numbers as me as the NCP at 49.99 timeshare with child, I have her over 60% of the time.
I did have a paralegal run a dissomaster for me based on min.wage/full time employment. She advised me that he could not add his son as child 2 if he does not have an order to pay child support for him. We ran the disso with and w/o the child 2. The numbers were still under guideline. XH is very stubborn, I could only negotiate 200.00 per month over what he was willing to pay in cs. I was just too vulnerable, emotional, and on my own at the time to take this to court and "fight it out" as XH put it. Therefore we settled out of court through his attorney (I know, stupid me). We went to court once when I filed a motion for a temp cs order, he showed up with his 2 attorneys, I was by myself. The Judge was going to have us "work it out" and have us come back in a month w/o granting me any temp child support. This was 3 months after separation and w/o recieving any support what so ever. I lost my faith in the judicial system at that point, didn't feel involving the court would be favorable w/o an attorney which the judge denied that xh pay my attorney fees. I did not have the resources to pay 5000.00-10,000 in attorney fees.

 

[niaveincali]

This is a textbook case for why divorce should always involve a lawyer.

It is an adversarial process.

You should get one now.

I couldn't agree more! Simply didn't have the resources at the time to do so. I got whatever help I could through legal aid, free 1/2 consultations, internet research, etc.
I won't go it alone again.

 

[niaveincali]

Marital property laws only apply to assets accrued DURING the marriage.

Is there equity in the house? Are both of you on the mortgage?

Because A judge CANNOT order his lender to either agree to a short sale or do a mod, and the lender may not agree to do so if doing so creates a loss for them. Many banks are not FNMA loan traders and are not required to accepted mod rules. If he qualifies, he may be able to adjust his mortgage via a refi. But if there is not sufficient equity, he may not be able to either refi nor sell.

I realize the marital property laws as is why I never tried to obtain money having to do with the home.
The house is underwater, I have never been on anything; house, bank accounts, vehicles, etc. I was a SAHM for seven years, I was not given an "allowance" for whatever was needed for the house, family, ect..
I had my own credit card that I had for years and managed to rack up 7000.00 in seven years to get what was needed while he was rarely home and I was with the kids. I assumed my credit card debt and continue to pay it off while xh used the house as marital debt on Stip Order that he was so kind to accept responsibility for. So where does our childs best interest come into consideration when I have her the majority of the time? Just feels a bit lopsided to me.....No??

 

[niaveincali]

He makes $57 an hour...but thinks that $2/hr will make a huge difference?

Yep, and would like me to pay 1/2 childcare now that he will be going to days. I make 11.00/hr and have her over 60% of the time.

 

[CourtClerk]

She advised me that he could not add his son as child 2 if he does not have an order to pay child support for him.

Then she shouldn't be advising people... Here's what the code says about deductions for additional children...

(2) The minimum basic living expenses of either parent's natural
or adopted children for whom the parent has the obligation to support
from other marriages or relationships who reside with the parent.
The court, on its own motion or on the request of a party, may allow
these income deductions as necessary to accommodate these expenses
after making the deductions allowable under paragraph (1).
(b) The maximum hardship deduction under paragraph (2) of
subdivision (a) for each child who resides with the parent may be
equal to, but shall not exceed, the support allocated each child
subject to the order. For purposes of calculating this deduction, the
amount of support per child established by the statewide uniform
guideline shall be the total amount ordered divided by the number of
children and not the amount established under paragraph (8) of
subdivision (b) of Section 4055.

If this is his biological child, which you suggest he is, he has just as much of a duty to support that child (ESPECIALLY if he's living with him) as he does your child.

We ran the disso with and w/o the child 2.

With child 2 is the only one that counts...

The numbers were still under guideline.

Impossible, because the dissomaster can ONLY spit out what IS guideline support.

I'll also add, that your income SHOULD NOT be imputed at minimum wage, full time. At a minimum, it should be imputed at at LEAST $11/hr., full time since that's what you've proven that you are minimally capable of making. Possibly more if you have work experience or an education.

 

[birdbrain53]

Don't bother listening to your ex or your ex's attorney.

File for a modification of parenting time and child support due to his changes if he hasn't.
File your income and expense report, proposed timeshare and a new dissomaster with your income as $11.00 an hour/40hr wk and him at his old $57.00 an hr/40hr wk. He doesn't get to voluntarily change his income to be lower to avoid paying child support.

Is daughter school age? If so then how can he get her to school in the morning if he needs to be at work at 4:30 AM? Same with day care. Really, you could argue that since he will be working during the day that the whole parenting time needs to be redone. He should be paying 1/2 of child care if it is needed.

Any paperwork your ex's attorney files with the court should also be sent to you so that you can review and see if there is anything you disagree with.

Your son is past the age of child support and he is eligible for SSI (?) so there is only 1 child for child support purposes.

 

[niaveincali]

Don't bother listening to your ex or your ex's attorney.

File for a modification of parenting time and child support due to his changes if he hasn't.
File your income and expense report, proposed timeshare and a new dissomaster with your income as $11.00 an hour/40hr wk and him at his old $57.00 an hr/40hr wk. He doesn't get to voluntarily change his income to be lower to avoid paying child support.

Is daughter school age? If so then how can he get her to school in the morning if he needs to be at work at 4:30 AM? Same with day care. Really, you could argue that since he will be working during the day that the whole parenting time needs to be redone. He should be paying 1/2 of child care if it is needed.

Any paperwork your ex's attorney files with the court should also be sent to you so that you can review and see if there is anything you disagree with.

Your son is past the age of child support and he is eligible for SSI (?) so there is only 1 child for child support purposes.

Because I have not fiqured out how to highlight a specific quote, I will address by number in order of paragraph

1. Yes, I really goofed up by settling with him through his attorney. His best interest was priority over the best interest of our daughter. Facts were slanted in his favor. I was an emotional wimp.

2. The new assumption is that he will not be changing from night shift to days, however he will be losing 5hrs of pay per bi-weekly paycheck due to County cuts (570.00/mo). A yearly loss of 6840.00, which will put him at 143,160/yr. If I impute my income at 11.00/hr working 40hrs per week, I come up with a yearly income of 21,120. Based on his yearly 143,160, he is paying 8 1/2% in child support for our daughter. If I impute my possible
21,120 and deduct from his income, he pays just under 10% cs. I have our daughter 60-65% of the time (it changes when he works overtime or daytrades, etc.). This is the only child he pays support for, his ex-wife makes more than he does and that was their agreement.

3. Yes, our daughter is 7yrs old. His hours are and will continue to be 430pm-
430am, now that he is staying on night shift. This also conflicts with his alleged 50% custody. Additionally, our daughter has asked why she can't be with me more because "daddy sleeps until the clock says 12:00 (noon) and I have to lay there for a long time to wait for him to wake up"
I'm really not trying to sling mud at him, but it is very sad to picture our little girl laying there at noon, waiting for daddy to wake up. This being on his days off, the only days he has her.

4. I do have a copy of the Divorce Settlement Agreement. It's been final since Dec. 2010. I am considering a modication now that I have a full year of documentation; my 2010 taxes, documented actual time our daughter spends with each of us, etc.

5. My son is not xh's bio son. I have never requested XH to pay cs for him (bio father is a deadbeat). Because of sons documented disability and that I am his sole provider, I thought I would be able to add him as a hardship for dissomaster purposes only. Now that my son is home from the psychiatric hospital and has been diagnosed as "gravely disabled" (which is a higher level than he was diagnosed in 2009), I will be filing for SSI on his behalf. I'm pretty certain he will qualify.

Sorry for the loooong story. Thank you for your input

 

[nextwife]

He lives. . . in our previous family home by himself with his son 2 nts a week and our daughter 2-3 nights per week. He pays way too much in mortgage, I suggested he should try to down size or do a loan modification.

The house is underwater

If the house is under water, he likely cannot refi it OR sell it unless he can make up the shortfall. He may NO LONGER QUALIFY FOR THE SAME MORTGAGE.