Retroactive modification to child support

[whatisfair]

My situation takes place in IL. I have 2 sons, 19 & 17. My ex and I have a divorce decree where my ex pays me for child support. Over the years, my ex will adjust the payment based on his earnings due to being out of work or a change of employment. Therefore, some years the child support was below the stated amount on the divorce decree and other years it was above the stated amount. Given this was an out of court agreement between us it was accepted by both of us. In 2016 I requested to see copies of his tax returns, my divorce decree states I can request copies of his tax return, and discovered the child support calculations on his earnings reported on the tax return would be greater than what he was actually paying me. I prepared a detailed spreadsheet with explanations of what is owed and emailed it him. Initially he did not agree to it, but after he spoke with others, he said I was correct of the back child support that was due. He said he would continue to pay me even after the kids turn 18. I recently relocated and now had to hire an attorney to help collect the child support in arrears. Information from a law firm in Indiana states one of three options to retroactively collect child support is if the parents have agreed to and carried out an alternative method of payment which substantially follows or comports with the existing child support order. Which is what my ex and I have done. Additional info online state a reason to file for modified child support is the non-custodial parent concealed finances, which is what my ex did after I reviewed his tax returns. Lastly, it also states online that judges have tremendous leeway when it comes to ordering retroactive child support. My question is, how can I file for retroactive child support due to the discovery of his earnings from the tax return without having filed a motion for modification back in 2016? Can I have the attorney file for retroactive child support from when my divorce began in 2004 or from 2016 when the change in earnings was discovered? Another question regarding court dates, can the attorney request for specific court dates or does it solely lie in the judge's hands to set court dates?

Thank you in advance for your response.

 

[Zigner]

You are represented - these are questions you should ask your attorney.

 

[whatisfair]

Thank you for your reply. I was looking for other opinions as other people may have different experiences.

 

[Zigner]

Thank you for your reply. I was looking for other opinions as other people may have different experiences.

I can absolutely guarantee that people have different experiences. Every case is unique. You are represented and it would be irresponsible for any of us (as random internet strangers) to second-guess the professional advice you will receive from your attorney who is familiar with all of the specific facts that are unique to your case.

 

[stealth2]

I wonder.... you wrote that Dad (with your agreement) paid under/over the ordered amount, based on his current income at any given time. When you did your calculations, did you take into account what he overpaid, how it figured in with that current income (as well as when he underpaid)?

If I were in *his* shoes, I would argue that you were well aware that his income varied, yet chose to not file for a modification at the time. nor request verification via tax returns until recently (aka 3 years ago). Additionally, he accounted for his increases in good faith. Is he paying towards further education? If so, is that voluntary or ordered? Something to bear in mind, especially if voluntary.

Lastly, were I in your shoes, I'd consider how much he may be ordered would go towards your legal fees.

 

[whatisfair]

I wonder.... you wrote that Dad (with your agreement) paid under/over the ordered amount, based on his current income at any given time. When you did your calculations, did you take into account what he overpaid, how it figured in with that current income (as well as when he underpaid)?

If I were in *his* shoes, I would argue that you were well aware that his income varied, yet chose to not file for a modification at the time. nor request verification via tax returns until recently (aka 3 years ago). Additionally, he accounted for his increases in good faith. Is he paying towards further education? If so, is that voluntary or ordered? Something to bear in mind, especially if voluntary.

Lastly, were I in your shoes, I'd consider how much he may be ordered would go towards your legal fees.

Yes, the calculation accounted for what was overpaid. I was aware of his change in income and trusted his calculations but did not know the actual amounts until his tax returns were reviewed.

 

[whatisfair]

I can absolutely guarantee that people have different experiences. Every case is unique. You are represented and it would be irresponsible for any of us (as random internet strangers) to second-guess the professional advice you will receive from your attorney who is familiar with all of the specific facts that are unique to your case.

Yes, every case is unique. I understand if legal advice is not given. I'm asking for advice of experience if anyone has gone through something similar. I feel my attorney is not representing me fairly. I have provided them all the info they ask, and more, and they continue to give me the run-around, don't respond to my emails, or ask me questions to which I have already provided them the info. They tell me they will do something and later find out it was not done. You may perceive it as second guessing professional advice. I perceive it as what have others experienced and how was it handled?

 

[Zigner]

Yes, every case is unique. I understand if legal advice is not given. I'm asking for advice of experience if anyone has gone through something similar. I feel my attorney is not representing me fairly. I have provided them all the info they ask, and more, and they continue to give me the run-around, don't respond to my emails, or ask me questions to which I have already provided them the info. They tell me they will do something and later find out it was not done. You may perceive it as second guessing professional advice. I perceive it as what have others experienced and how was it handled?

If you are not comfortable with the representation that your attorney is providing, then you should consider hiring a different attorney.

 

[not2cleverRed]

I wonder.... you wrote that Dad (with your agreement) paid under/over the ordered amount, based on his current income at any given time. When you did your calculations, did you take into account what he overpaid, how it figured in with that current income (as well as when he underpaid)?

If I were in *his* shoes, I would argue that you were well aware that his income varied, yet chose to not file for a modification at the time. nor request verification via tax returns until recently (aka 3 years ago). Additionally, he accounted for his increases in good faith. Is he paying towards further education? If so, is that voluntary or ordered? Something to bear in mind, especially if voluntary.

Lastly, were I in your shoes, I'd consider how much he may be ordered would go towards your legal fees.

Highlighting this, because it needs to be repeated: balance what you believe you potentially could get against the potential legal cost of getting it.

 

[stealth2]

Highlighting this, because it needs to be repeated: balance what you believe you potentially could get against the potential legal cost of getting it.

Also, bear in mind that, should he prevail in court, he would be well within his rights to request that the court hold you responsible for his legal fees. And a court could order it.