Can a 3 year old final divorce decree be modified/amended? NH

[criticalthinker]

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

Three years ago I presented information at my final divorce hearing to prove that my income was not at the level my ex claimed it to be. I am self-employed. I presented a signed, notarized letter from my third-party accountant stating that my income was $X. Because the hearing was held in July, the only available documentation was the previous year's tax return and the signed estimate from my accountant regarding my income for the first 6 months of the current year.

The court, in its final decree, stated that it "did not find my information credible". Basically, the Court didn't believe that my income had dropped to about 25% of the previous year's level. And apparently a signed notarized estimate from an independent accountant is not considered credible.

The Court went on to state "the court believes that I had a drop in income, but does not believe that the drop is as dramatic as I claim". Further, "for this reason the court orders me to provide my ex with a copy of my business and personal tax returns every year within X days of filing".

Zoom ahead to the present. I now have, on record, my official income from the year of the divorce. Not only was the accountant's estimate credible, it was a bit high. I made about 10% less than estimated that year.

My questions are:

Can I petition the Court for a change to the final decree? I'd like the statement about my credibility removed from the decree, but I doubt that is permissible.

If the statement cannot be removed from the decree, can the decree be amended to reflect that the information provided was later found to be credible? It continues to bother me that an official court document questioned my credibility.

Can I have the requirement that I "must provide copies of tax returns to my ex within X days of filing" removed? That requirement, as I pointed out earlier, was ordered by the court based solely on an incorrect assumption about my credibility. I now have the documents to prove it beyond any doubt. What sort of document would I need to file with the Court?

If I cannot have that requirement removed, can I request through the Court that my ex be held to the same standard? I do not currently receive copies of my ex's tax returns. What do I need to file in order to accomplish that?

Kind regards,

CT

 

[Bali Hai]

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

Three years ago I presented information at my final divorce hearing to prove that my income was not at the level my ex claimed it to be. I am self-employed. I presented a signed, notarized letter from my third-party accountant stating that my income was $X. Because the hearing was held in July, the only available documentation was the previous year's tax return and the signed estimate from my accountant regarding my income for the first 6 months of the current year.

The court, in its final decree, stated that it "did not find my information credible". Basically, the Court didn't believe that my income had dropped to about 25% of the previous year's level. And apparently a signed notarized estimate from an independent accountant is not considered credible.

The Court went on to state "the court believes that I had a drop in income, but does not believe that the drop is as dramatic as I claim". Further, "for this reason the court orders me to provide my ex with a copy of my business and personal tax returns every year within X days of filing".

Zoom ahead to the present. I now have, on record, my official income from the year of the divorce. Not only was the accountant's estimate credible, it was a bit high. I made about 10% less than estimated that year.

My questions are:

Can I petition the Court for a change to the final decree? I'd like the statement about my credibility removed from the decree, but I doubt that is permissible.

If the statement cannot be removed from the decree, can the decree be amended to reflect that the information provided was later found to be credible? It has always bothered me that an official court document questioned my credibility.

Can I have the requirement that I "must provide copies of tax returns to my ex within X days of filing" removed? That requirement, as I pointed out earlier, was ordered by the court based solely on an incorrect assumption about my credibility. I now have the documents to prove it beyond any doubt. What sort of document would I need to file with the Court?

If I cannot have that requirement removed, can I request through the Court that my ex be held to the same standard? I do not currently receive copies of my ex's tax returns. What do I need to file in order to accomplish that?

Kind regards,

CT

What makes you believe that the court will find any of your current docmentation credible?

What's really going on here is that the court's motivation (in finding your documents not credible) isn't credible.

The court's motivation is about favoring women.

 

[criticalthinker]

Nothing, really. I guess I am hoping that an official K-1, Schedule C and tax return filed with the IRS would satisfy any reasonable claim about my credibility. Why should I have to live with a statement on the record that is untrue?

Would a Court actually claim that those documents are also not credible?

How is it possible that the Court can get away with simply ignoring or dismissing (as not credible) documentation that is accepted as proof of income in practically every financial transaction outside the Court?

 

[Bali Hai]

Nothing, really. I guess I am hoping that an official K-1, Schedule C and tax return filed with the IRS would satisfy any reasonable claim about my credibility. Why should I have to live with a statement on the record that is untrue?

Would a Court actually claim that those documents are also not credible?

How is it possible that the Court can get away with simply ignoring or dismissing (as not credible) documentation that is accepted as proof of income in practically every financial transaction outside the Court?

The court doesn't need to justify its position to you or anybody else.

An official K-1, Schedule C and tax return filed with the IRS just means it was filed and accepted by the IRS, it doesn't mean that it's credible information to the court.

 

[mistoffolees]

Nothing, really. I guess I am hoping that an official K-1, Schedule C and tax return filed with the IRS would satisfy any reasonable claim about my credibility. Why should I have to live with a statement on the record that is untrue?

Would a Court actually claim that those documents are also not credible?

How is it possible that the Court can get away with simply ignoring or dismissing (as not credible) documentation that is accepted as proof of income in practically every financial transaction outside the Court?

It's the court's job to determine what is credible and what isn't.


There are two possible scenarios and there's no clue which one is real:

1. The court thought you were lying and assumed a much higher income figure in calculating support/alimony, whatever. If that's the case, you should have gone back as soon as your first year's tax returns were completed to ask the court to recalculate based on actual figures rather than presumed figures.

2. The court accepted your figures PROVISIONALLY and based its calculations for support/alimony/etc on your reported figures, but added a statement that your figures were suspect and they wanted you to prove that they were accurate by providing your tax returns.

Without knowing which of those scenarios occurred, it's impossible to offer advice.

 

[criticalthinker]

The court doesn't need to justify its position to you or anybody else.

An official K-1, Schedule C and tax return filed with the IRS just means it was filed and accepted by the IRS, it doesn't mean that it's credible information to the court.

I understand. But what, then, is credible proof of income for a Court, short of dumping a pile of money on the Court's bench for a recount? What sort of proof is credible? What is accepted as proof by dozens of other judges in other Courts throughout the US? Is that not precedent about the credibility of such documents?

I can't believe a Court would permit the willy-nilly acceptance of documents as credible across thousands of cases. But if what you say is correct, they do.

So, what sort of proof of income is considered credible? The answer isn't none. If it were the Court wouldn't be able to function. So something must be considered credible. Can I ask someone at the Court what sort of proof is credible? The judge that originally heard the case is retired. And, if I can provide that information to the Court, can I then accomplish what I originally wrote in the first post?

 

[criticalthinker]

It's the court's job to determine what is credible and what isn't.

There are two possible scenarios and there's no clue which one is real:

1. The court thought you were lying and assumed a much higher income figure in calculating support/alimony, whatever. If that's the case, you should have gone back as soon as your first year's tax returns were completed to ask the court to recalculate based on actual figures rather than presumed figures.

2. The court accepted your figures PROVISIONALLY and based its calculations for support/alimony/etc on your reported figures, but added a statement that your figures were suspect and they wanted you to prove that they were accurate by providing your tax returns.

Without knowing which of those scenarios occurred, it's impossible to offer advice.

I believe in my case it was number 1. It was clear throughout the hearing that the Court did not believe me, for whatever reason. I have heard that it may be because I am self-employed and the Court generally does not trust self-employed individuals, as if a W2 and 1040 is any more credible than a K1, Schedule C and 1040.

I was not looking to hurt my children. I'd never do that. I accepted the Courts orders and, consequently, I've been paying a much higher level of support than I could really afford ever since. It required a combination of substantially lowering my own standard of living, and in a couple instances, going into greater debt. So I never returned to the Court with tax forms to recalculate support. Call me a fool, but that's the way I handled it.

What has bothered me over the years is that reference to my credibility as if I am some sort of liar or criminal, when I am not. And while I didn't return to the Court the following year to "clear my name", I'm asking if I can do it now.

 

[mistoffolees]

I believe in my case it was number 1. It was clear throughout the hearing that the Court did not believe me, for whatever reason. I have heard that it may be because I am self-employed and the Court generally does not trust self-employed individuals, as if a W2 and 1040 is any more credible than a K1, Schedule C and 1040.

What you believe is irrelevant. You have no way of knowing if the court treated you fairly or not until you determine which if the two options I provided occurred.

You could calculate the child support that should have been ordered based on your reported income to see if they used your figures or arbitrary figures.

As I said - the time to have resolved this would have been years ago.

What has bothered me over the years is that reference to my credibility as if I am some sort of liar or criminal, when I am not. And while I didn't return to the Court the following year to "clear my name", I'm asking if I can do it now.

Forget 'clearing your name'. The court isn't interested, nor is anyone else on the planet. No one is likely to ever see the court documents and even if they do, "the evidence presented was not credible" isn't besmirching your name.

You'd be wasting your time to even try if you're simply trying to 'clear your name'.

If you feel that there are significant changes in your circumstances SINCE THE DECREE WAS FINALIZED, then you would have grounds to have the decision reopened. But prepare to get tossed out on your rear if you say "I don't really want to change the child support figures, I just want to clear my name".

 

[criticalthinker]

You could calculate the child support that should have been ordered based on your reported income to see if they used your figures or arbitrary figures.

As I said - the time to have resolved this would have been years ago.

I should have been more clear. I wrote "I believe" because it didn't require any calculations at all to see that the Court was using an income some 4x higher than my reported income on the child support guideline worksheet. The Court chose to use a figure that was presented by my ex's attorney against my objections - a figure that was neither my reported income for the year prior, nor my estimated income for the current year, but arbitrarily somewhere in between.

Forget 'clearing your name'. The court isn't interested, nor is anyone else on the planet. No one is likely to ever see the court documents and even if they do, "the evidence presented was not credible" isn't besmirching your name.

You'd be wasting your time to even try if you're simply trying to 'clear your name'.

If you feel that there are significant changes in your circumstances SINCE THE DECREE WAS FINALIZED, then you would have grounds to have the decision reopened. But prepare to get tossed out on your rear if you say "I don't really want to change the child support figures, I just want to clear my name".

It's a shame. Your basically telling me that nobody cares about the facts, certainly nobody but me. And sadly, you're right.

I can tell you that it does matter. The Court referenced my decree from the bench on multiple occasions during a recent hearing that I requested on a separate matter. That means the Court has reviewed details about my alleged financial credibility in the past, in a new case which happens to involve my finances. That also means such statements in the decree may affect the outcome of any future hearings as well. While I can't tell you what the Court was thinking as it reviewed my decree, you cannot tell me that the information would not influence the Court's thinking.

So essentially your advice is, get over it. But I would hope you can understand the cause for my concern.

 

[LdiJ]

I should have been more clear. I wrote "I believe" because it didn't require any calculations at all to see that the Court was using an income some 4x higher than my reported income on the child support guideline worksheet. The Court chose to use a figure that was presented by my ex's attorney against my objections - a figure that was neither my reported income for the year prior, nor my estimated income for the current year, but arbitrarily somewhere in between.





It's a shame. Your basically telling me that nobody cares about the facts, certainly nobody but me. And sadly, you're right.

I can tell you that it does matter. The Court referenced my decree from the bench on multiple occasions during a recent hearing that I requested on a separate matter. That means the Court has reviewed details about my alleged financial credibility in the past, in a new case which happens to involve my finances. That also means such statements in the decree may affect the outcome of any future hearings as well. While I can't tell you what the Court was thinking as it reviewed my decree, you cannot tell me that the information would not influence the Court's thinking.

So essentially your advice is, get over it. But I would hope you can understand the cause for my concern.

I am going to comment on something here that may be of relevance to your situation now, or in the future.

When someone is self employed, its quite common for courts to add back non cash expenses to determine income for child support purposes.

By non cash expenses I mean depreciation, amortization, Section 179 deductions, nols and sometimes even a portion of mileage, since mileage contains a depreciation element.

Also, there is a difference between someone who is self employed, and someone who receives a W2. There is no doubt whatsoever regarding the income of someone who has a W2, because there is little they can do to "cook their books". However, there is quite a bit that someone could do to "cook their books" if they are self employed.

So, you cannot assume that your net profit for tax purposes, is going to be the figure that a judge will use to determine child support.

Also, If I were a judge I probably would be skeptical of taking an estimate from your regular accountant too. A year to date Profit and Loss report might have been a better thing to use unless your business is seasonal. Then the judge could have extrapolated his/her own figures from that.

 

[Bali Hai]

I should have been more clear. I wrote "I believe" because it didn't require any calculations at all to see that the Court was using an income some 4x higher than my reported income on the child support guideline worksheet. The Court chose to use a figure that was presented by my ex's attorney against my objections - a figure that was neither my reported income for the year prior, nor my estimated income for the current year, but arbitrarily somewhere in between.





It's a shame. Your basically telling me that nobody cares about the facts, certainly nobody but me. And sadly, you're right.

I can tell you that it does matter. The Court referenced my decree from the bench on multiple occasions during a recent hearing that I requested on a separate matter. That means the Court has reviewed details about my alleged financial credibility in the past, in a new case which happens to involve my finances. That also means such statements in the decree may affect the outcome of any future hearings as well. While I can't tell you what the Court was thinking as it reviewed my decree, you cannot tell me that the information would not influence the Court's thinking.

So essentially your advice is, get over it. But I would hope you can understand the cause for my concern.

What is essentially being said to you is that her lawyer and the judge screwed you over. You're a man and it happens to men regularly in divorce court, so get over it.

 

[Bali Hai]

I am going to comment on something here that may be of relevance to your situation now, or in the future.

When someone is self employed, its quite common for courts to add back non cash expenses to determine income for child support purposes.

By non cash expenses I mean depreciation, amortization, Section 179 deductions, nols and sometimes even a portion of mileage, since mileage contains a depreciation element.

Also, there is a difference between someone who is self employed, and someone who receives a W2. There is no doubt whatsoever regarding the income of someone who has a W2, because there is little they can do to "cook their books". However, there is quite a bit that someone could do to "cook their books" if they are self employed.

So, you cannot assume that your net profit for tax purposes, is going to be the figure that a judge will use to determine child support.

Also, If I were a judge I probably would be skeptical of taking an estimate from your regular accountant too. A year to date Profit and Loss report might have been a better thing to use unless your business is seasonal. Then the judge could have extrapolated his/her own figures from that.

Are you suggesting that if depreciation, amortization, Section 179 deductions, nols and sometimes even a portion of mileage were added back on his income, it would increase his income four times higher?

I've said this before, lawyers and judges should be barred from doing math calculations!

 

[mistoffolees]

Are you suggesting that if depreciation, amortization, Section 179 deductions, nols and sometimes even a portion of mileage were added back on his income, it would increase his income four times higher?

Sure it could - especially in a bad year when actual cash taxable profits are relatively low.

I know someone who reports about $150 K in income, but has other benefit of over $400 K (some of that should be taxable, but I don't know if he reports it). On top of that, there's a couple hundred thousand of depreciation - which is deductible, but which does not affect his cash, so that's a couple hundred thousand in cash that's going into his pocket, but which is not taxable and would not be included in his net income on the tax returns.

When business drops off, the number which is going to drop first is the net income number. One year, taxable net income was close to zero, but he still took over half a million dollars in cash and other benefit from the business.

It's not a matter of judges manipulating numbers. Rather, it's a matter of the court trying to ensure that he's accurately reporting what he gets out of the business - which is often much higher than the reported taxable income. Surely even you would agree that in a case like above (reported net income was close to zero, but the guy got $300 K in cash plus benefits worth another couple hundred thousand dollars), that $0 is not really the relevant figure for calculating child support.

 

[LdiJ]

Sure it could - especially in a bad year when actual cash taxable profits are relatively low.

I know someone who reports about $150 K in income, but has other benefit of over $400 K (some of that should be taxable, but I don't know if he reports it). On top of that, there's a couple hundred thousand of depreciation - which is deductible, but which does not affect his cash, so that's a couple hundred thousand in cash that's going into his pocket, but which is not taxable and would not be included in his net income on the tax returns.

When business drops off, the number which is going to drop first is the net income number. One year, taxable net income was close to zero, but he still took over half a million dollars in cash and other benefit from the business.

It's not a matter of judges manipulating numbers. Rather, it's a matter of the court trying to ensure that he's accurately reporting what he gets out of the business - which is often much higher than the reported taxable income. Surely even you would agree that in a case like above (reported net income was close to zero, but the guy got $300 K in cash plus benefits worth another couple hundred thousand dollars), that $0 is not really the relevant figure for calculating child support.

I agree, its quite common even for businesses to decide to make capital purchases that completely wipe out their net income, for tax purposes, with section 179 expenses...and an nol from a previous year can wipe out the profits for sometimes several years, for income tax purposes.

I spent 15 years with a small C Corp that never paid any tax at all. The nols from its first two years of operations wiped out its modest profits for quite a few years, and the section 179 deductions wiped out its modest profits for several more.