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Michael
Michael, Legal Consultant
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I have a child support order in Wi. My ex is now remarried ...

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I have a child support order in Wi. My ex is now remarried and living in MN. Does his income come into consideration. Can my profit sharing and discretionary bonus be considered part of my gross income when calculating a monthly dollar amount?
Submitted: 6 years ago.
Category: Family Law
Expert:  Michael replied 6 years ago.

Hello Mr. Gawinski,

First, your ex-wife's new husband's income does not come into consideration when making child support decisions. The courts have generally held that only the mother and father are expected to contribute to the support of their child.

In rare cases a stepfather who assumes a large and long-lasting role in the life of a child may be required to continue to provide support even if he were to divorce the mother, but these cases are, by far, the exception.

The idea is that this man is not the biological father and therefore should not be expected to provide financial support to the child. Exceptions occur when the stepfather adopts the child and the biological father terminates his parental rights. These situations are rare, however, as the father who terminates his parental rights loses all rights of visitation or contact permanently.

In calculating your actual income, discretionary bonuses and profit sharing plans that allow for your use of the funds are normally included.

In general, the courts will include all income including tips, commissions, interest on savings, capital gains on investments, etc. as in the case of a married couple, all of these funds would be used for the care of the household and the children. So it they are all included when calculating child support.

Please let me know if you have any other questions about this.

Take care,

Michael

Customer: replied 6 years ago.
Reply to Michael's Post: so in my situation, is there any argument to not use the discretionary bonus or deffered bonus in calculation. If my support goes up the amount they are talking, then I can't afford my $95K house. For me to lose my house would not be in the best interest of my daughter
Expert:  Michael replied 6 years ago.

 

While you are free to make this argument, there is almost no way that the judge is going to believe that including these amount in your income (which is what most state laws require when calculating child support) will raise your child support payments so much that you will lose your house.

The likely conclusions would be that you have far too much discretionary spending that you need to control; otherwise it will appear that you are putting your needs and wants before your child's best interests.

While you are free to make any argument regarding an adjustment to the child support amount calculated, remember that nearly every other person paying child support also has their discretionary bonuses, commissions, etc. included in the calculation.

So you need to be careful when arguing this so that it does not appear to the judge that you are simply complaining about having to pay child support. Judges can be quick to anger, and you do not want to risk making the judge angry when he has so much authority to make decisions.

Make sure you can substantiate your finances and that discretionary spending is kept to an absolute minimum before you present this argument. If it seems reasonable to the judge whether he rejects it or accepts it at least he will take it seriously.

Also, remember that you can always file a motion for modification of child support in the future if circumstances change and the bonuses completely disappear, your expenses increase substantially, or your base income decreases.

Good luck,

Michael

Michael, Legal Consultant
Category: Family Law
Satisfied Customers: 456
Experience: Expert witness in Federal court, won cases at State lower & appellate levels.
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Expert witness in Federal court, won cases at State lower & appellate levels.