Child Support Guideline Help!

August 14, 2010 3:55 PM

Child support filter: Ex-husband voluntarily agreed 8 years ago to pay more than state minimum child support. Just got letter from his lawyer saying he wants to now pay state amount.

YANAL, but input about how these decisions are made would be helpful.

Specifically, the ex is underemployed (when we were married, he was a salesperson making up to 6 figures yearly; for the past 5 years he has taken time off to perfect his tennis game and is now a part-time telemarketer and amateur tennis player).

He lives in his girlfriend's house but owns a condo that his girlfriend's brother lives in.

As for me and my 3 kids, they qualify for (and get) free school meals and we live in low-income housing.

I work full-time as a teacher (so not a great salary) and I'm in the process of getting my 2nd Master's so I can bump up on the payscale. I get tutoring jobs when I can, but my youngest has a disability and I need to have work that allows me to drop everything and get him emergency care when necessary.

My questions: will a judge factor any of this in, or does it not matter? Do I need a good lawyer, or does it ultimately come down to his income?

Lastly, can anyone recommend a really good lawyer in the Boston area who works on a sliding scale so the kids can stay financially protected?

I can't get free legal aid because his girlfriend is a heavy-hitting fundraiser for the agency in my jurisdiction (my ex donated $1000 to their most recent fundraiser). Years ago, she found out that I had applied for legal aid and was given information about me that she shared with my ex (and his lawyer). So that option is out.

posted by dzaz to Law & Government (21 answers total)

As far as I know, at least in my state, child support is based on earning potential, rather than actual earnings... presumably so that non custodial parents cannot become part time tennis players.

Also, I have a couple friends who receive child support, and who have actively campaigned to have their exes child support REDUCED (due to a variety of circumstances) and the courts never went for it, even though the custodial and non custodial parents were in agreement.

So, from my experience, no, I don't think you have much to worry about.
posted by Leta at 4:03 PM on August 14, 2010

Years ago, she found out that I had applied for legal aid and was given information about me that she shared with my ex (and his lawyer).

Wow, that's really messed up. Sounds like grounds for a complaint with the state bar.
posted by grouse at 4:18 PM on August 14, 2010 [43 favorites]

Yeah, you need to complain to the state bar about the girlfriend and whatever legal aid place you dealt with. That, like, license-pulling ethics violations.

A friend of mine is in a similar situation to yours and the ex-husband protested to the judge, when they went to court about four months ago, that he didn't WANT to work harder/more/at all. The judge said, "You probably should have thought of that before having four kids," and increased the child support that the guy was trying to get DECREASED so he could quit his part-time job and loaf full time. That judge was awesome.
posted by Eyebrows McGee at 4:33 PM on August 14, 2010 [2 favorites]

Yeah, what grouse said. No clue about the support, but if you can prove what you assert you ought to talk to the bar association. That's crazy.
posted by fixedgear at 4:33 PM on August 14, 2010 [1 favorite]

Best answer: I suppose you've seen this already? The Massachusetts Court System's Child Support Guidelines:

"Attribution of Income: If the court makes a determination that a party is earning substantially less than he or she could through reasonable effort, the court may consider potential earning capacity rather than actual earnings. In making this determination, the court shall take into consideration the education, training, and past employment history of the party. These standards are intended to be applied where a finding has been made that the party is capable of working and is unemployed, working part-time or is working a job, trade, or profession other than that for which he/she has been trained."
posted by Houstonian at 4:36 PM on August 14, 2010 [1 favorite]

Best answer: Massachusetts Bar Association and Boston Bar Association both have lawyer referral programs, and can give you a low-cost referral. There are many legal aid organizations in the Boston area, a few of which might serve your jurisdiction - ask the clerk in the probate and family department of your county courthouse for a list of local organizations and their phone numbers.
posted by shannonigans at 5:15 PM on August 14, 2010

If he wants to change the support order, he'll need to file and go to court (not familiar with how MA works, and IANYL btw). The court will look at everything, including whether or not he is voluntarily underemployed. In WA, the courts will impute income to someone who is under-earning, based on a variety of factors. If his lawyer isn't on top of this, your ex may come in for a nasty surprise when the court orders him to pay more than he wants to pay. The minimum is just that - a minimum - and what's actually ordered can vary widely from that.

Also, what everyone else said, I'd raise merry hell about the legal aid info leak. That's a big-time NO, and someone should end up very, very sorry for that sort of impropriety.
posted by Lulu's Pink Converse at 5:30 PM on August 14, 2010 [6 favorites]

Also, what everyone else said, I'd raise merry hell about the legal aid info leak. That's a big-time NO, and someone should end up very, very sorry for that sort of impropriety.

I completely agree. I don't know how you can prove it, but you should really do something. If Legal Aid would do something like that for $1000 what would they do for more? It's disgusting that they'd treat your information as something to sell. All sorts of terror should be brought down on them.
posted by TooFewShoes at 5:37 PM on August 14, 2010 [1 favorite]

Response by poster: The reason I didn't make a complaint about the legal aid leak is because: 1) the lawyer I ended up paying for said it would be very hard to prove; 2) my ex-husband has a history of abuse and I don't want to give him a reason to ever come to my door and scare me and the kids again; and 3) the legal aid attorney who leaked my info actually died a few years ago.

I didn't realize there are other agencies; I will look into that.

Thanks for the info so far.
posted by dzaz at 5:38 PM on August 14, 2010

Also, what everyone else said, I'd raise merry hell about the legal aid info leak. That's a big-time NO, and someone should end up very, very sorry for that sort of impropriety.

+1

That is not right, and actions like that by someone that knows better deserve consequences.

Aside from that, your ex actually paying extra for many years says something about his character, so don't exactly attack him, but the fact he owns a condo that someone else lives in makes me want to puke.
posted by zombieApoc at 5:46 PM on August 14, 2010

IANAL but I would be really really shocked if you are able to get a cent more than the state minimum amount at the imputed six figure salary. Judges will take your child's disability into consideration.
posted by Zophi at 6:14 PM on August 14, 2010

Zophi> IANAL but I would be really really shocked if you are able to get a cent more than the state minimum amount at the imputed six figure salary. Judges will take your child's disability into consideration.

Did you mean to say "unable" there? I'm not intending to quibble; I'm actually confused, given the phrasing and the sentence that follows.
posted by UrineSoakedRube at 8:08 PM on August 14, 2010

You don't say what field you ex did sales in, but sales in general is a much lower paying and harder to get work in field now than when you and your ex married, which would have been say 15 years ago.

So it is possible that a court could reevaluate your ex as having a lower earning potential now.
posted by zippy at 8:08 PM on August 14, 2010

Sorry for the confusion. Based on my experience in dealing with child support, it is possible to get considerations made for disabled children. However, it's not terribly easy in this market to get income imputed, and I haven't heard of it happening nearly as much lately.
posted by Zophi at 8:24 PM on August 14, 2010

I've still been able to impute with no problem. The market will be a factor in the imputation -- it may be 40 hours at ten an hour instead of fifteen, but there are jobs out there for people who want them. If he has a part time job, use his hourly rate to get to a starting number for what he'd make working full time. Also, does he get rent on the condo?

A lawyer is not strictly necessary for this, but always a good idea if the other side has one.

IANYL, TINLA.
posted by freshwater at 9:39 PM on August 14, 2010

Best answer: Again, a lawyer in your jurisdiction is the best answer. In general, for someone to go to court and request an order be issued that allows them to pay less, they (your husband) has to prove that the circumstances have substantially changed (and for the worse for the payer or for the better for the recipient). Usually, voluntarily choosing to make less money shouldn't count as a good enough factor and it appears that you obviously aren't raking in the cash. None the less, that's just the general (and brief) overview of changing a support order. You absolutely should find a lawyer who has experience in this area.
posted by Atreides at 4:25 AM on August 15, 2010

Response by poster: Thanks for the help. Contacting Legal Aid tomorrow.

So, a judge will factor in that:

* He's underemployed;

* I was given the house in the divorce, he was given equal cash assets (with which he bought a condo that he's never lived in). I couldn't keep up the mortgage payments and had to sell the house at a loss (so I got $0 from that sale); we now live in low-income housing;

* Because of my kid's disability, it's critical that I have a job where I get health insurance and the flexibility to sometimes do urgent care (as well as keep up his regular doctor appointments);

* He owns a condo that he allows someone to live in (I don't know if he charges rent, but if he is, that's considered income, right?)

Lastly: would it make any difference to a judge that he's violated the visitation agreement by not seeing the kids for over 4 years (other than the monthly pizza slice on Wednesday afternoons)? He lives down the road from us, so it's not a matter of distance.
posted by dzaz at 4:58 AM on August 15, 2010

Response by poster: ...I don't know if this factors either, but when he initially agreed to the larger amount (which yes, I'm grateful for), he wasn't working and was living off a trust fund (in the settlement, he got the trust fund, I got the house).

Prior to that, he was earning 6 figures, so it's been at least 9 years that I know of since he's made that kind of money.
posted by dzaz at 5:13 AM on August 15, 2010

Response by poster: Sorry...would the kids be better protected if I paid for a family lawyer or would I get similar services from legal aid (my parents have offered to pay for someone).
posted by dzaz at 6:20 AM on August 15, 2010

family lawyer.
posted by elle.jeezy at 6:59 AM on August 15, 2010 [1 favorite]

Best answer: I might be the minority opinion here, but I don't think the condo issue is going to mean anything to the judge, unless the ex is making profitable rent off it, i.e. mortgage payment is $1500/mo and the GF's brother is paying $2,000/mo on a formal lease, and therefore the ex receives income.

Because, the ex is living with his GF, and he's renting out his own place. So what?

I mean, is it egregious from a "don't be a deadbeat dad" standpoint? Sure.

But it's not like he's making extraordinary sums of money off this. It's likely a case that the ex was already practically living with the GF, and then the GF's brother needed a place to crash.

From the information we have received, this is not a situation where cash that should go to the kids is being diverted or laundered. If the ex and his GF break up, presumably the brother gets kicked out and ex returns to his condo.

I haven't seen this implicitly stated anywhere, but if anyone is thinking, "Well, the ex should sell his condo and give the $$ to his kids, if he doesn't need the condo"... I just don't think that's reasonable. It's a condo, not a 100-acre estate. Even a deadbeat is entitled to own a place to live... even if he isn't sleeping there at present.

dzaz, this sucks and I truly hope you get a good, affordable attorney who can help you out of this mess.
posted by pineapple at 5:57 PM on August 15, 2010