Divorcing unemployed NCP with minor child.

[not2cleverRed]

What is the name of your state (only U.S. law)? NY

My STBX (someday to be ex, for the purposes of this post) has represented himself to his attorney as “not working”. We have 1 child, age 4. He sees her once every other week for a few hours. As far as I know, he has not been employed since September 2005. (I obtained an Order of Protection against him in April 2008, he moved to MA, and I chose not to renew the OP when it expired.) He is highly educated (PhD) and has no physical health condition that which would preclude him from working.

A recent email from my lawyer indicates that a court might be hesitant to sign a judgment of divorce “without some provision for the support” of our child.
(1) How true is this?

(2) Two options were suggested. Which of these makes more sense:

(a) file for a judge in Supreme Court and seek child support through the Court.
(b) attempt to reach an agreed upon sum and settle the divorce, with a provision that the I be free to go back to court when the STBX becomes employed to get a new child support order.

What are the advantages/disadvantages of these two options, legally?

I realize that (a) would incur more immediate legal fees, which might not make sense if blood can't be gotten from a stone.

And, no matter which option is chosen, isn't it standard that if there is a change in circumstances, that one might apply modification of child support?

But I'm leaning towards the court option because STBX's been unreasonable on other things, and it's likely that the only way that he could be convinced that his behavior does not conform to societal expectations is for a judge to tell/order him so.

Is there another option equally worth considering?

Moderators, feel free to advise me to move this to another forum if you deem it appropriate. I posted here rather than under child support because it's really a question of getting to the divorce decree, and what's the best way, long term, to get there - for me and the kid.

 

[ecmst12]

Get child support ordered by the court. They can impute an income that he is capable of earning, if they determine he is voluntarily unemployed. And if he doesn't pay, he will accrue arrears which eventually, when he feels like getting a job, he will have to pay. How is he supporting himself?

 

[not2cleverRed]

Thanks! I was suspecting that the court option would be better, given the circumstances.

And yes, it's a good question as to what he's living on at this point. I know he had some savings, but there's no way it could stretch this far, given his lifestyle (i.e. renting apt., cars). He was always very secretive about his accounts, so hard to tell where/how much.

 

[mistoffolees]

Thanks! I was suspecting that the court option would be better, given the circumstances.

And yes, it's a good question as to what he's living on at this point. I know he had some savings, but there's no way it could stretch this far, given his lifestyle (i.e. renting apt., cars). He was always very secretive about his accounts, so hard to tell where/how much.

Note that the initial comment is incorrect. It is very unlikely that a judge would refuse to grant an divorce because of inability of the stbx to pay support. The court will grant a divorce even if the other party is destitute.

Whether you'll ever collect anything is a different matter, but even if you don't expect to collect, it's worth getting a support order - in case the other person inherits money, wins the lottery, or simply decides to become a productive member of society.

 

[not2cleverRed]

Thank you mistofolees. The inaccuracy you noted is one I've questioned myself. The exact wording my lawyer used in his letter to me was:

"When a child is involved, in most every instance, the court will refuse to sign a judgment of divorce that does not contain some provision for the support of a minor child."

My STBX has refused to budge on the child support issue, apparently, simply saying he will not agree to any form of child support because, "I'm not working." Rather than, "If I were working I would be willing to contribute X amount based on the NY states CS guidelines."

I think, based on my knowledge of the STBX's gradually more warped train of thought, that he would only agree to any form of CS order under duress - ie, pressure from a judge. In Family Court, no one has questioned how he is supporting himself.

And yes, the likelihood of collecting anything is minimal, given his mindset.

The one thing I've thought of that might help my situation is that when I sponsored him for a green card, HE also signed the Affadavit of Support, because we used his W-2 income at the time to qualify. (Usually only the sponsoring spouse signs.)