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socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 37808
Experience:  Retired (mostly)
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My husband has been divorced since 2007 and there are two children

Customer Question

My husband has been divorced since 2007 and there are two children involved. According to he and his ex's divorce decree it was decided that child support would not be paid. She is now wanting to go to court to have her ex ordered to pay child support because she is in school full time. Can she do that? Or shall I ask, is that something the courts will take into consideration, having him pay child support after almost two years just because she is in school?
Submitted: 7 years ago.
Category: Family Law
Expert:  socrateaser replied 7 years ago.

Parents cannot abrogate their child's "right" to support. Therefore, a court can order support at any time, upon the request of a parent, regardless of any prior agreement of the parents.


However, the parent receiving support cannot simply avoid employment in order to force the other parent to pay more support, so if your husband can show that the recipient parent has the talent and ability to earn $X, and is unwilling to work, then the court can impute income to the recipient parent which will reduce the paying parent's support obligation and simultaneously "encourage" the recipient parent to seek work.


Note: I don't minimize the difficulty of proving elements necessary to impute support. However, if the recipient parent was working and has suddenl quit, then that parent's prior employment wages and benefits would suffice as proof to impute income, absent proof from the recipient parent that she was involuntarily terminated and no other work is available in the job market in her locale.



Customer: replied 7 years ago.
So the ex can take him back to court? She is putting in her reasoning that it is due to her being in school full time, that my husband doesn't have the children all but every other weekend (her doing) although they have 50/50 custody, and that he does not help with financial needs. He is more then happy to help with financial needs for the children but asks for it to be appropriate and get a receipt such as for day care. His ex denied getting information regarding the children's care to him. We are more then happy to take the kids half the week so taht it would be a truely 50/50% custody. Would the judge take that into consideration?
Expert:  socrateaser replied 7 years ago.

Yes, the ex can take him back to court. And, unfortunately, "appropriate" child support, per federal law, must be based on the parents' income and not the "needs" of the child. A receipt for daycare can be obtained only if the other parent is receiving add-on daycare costs and not obtaining any daycare services. But, you can't get the receipt in advance -- you have to observe the other parent cheating and then initiate a support modification proceeding.


As for the 50/50 custody issue, if you have that in the orders, then you should be exercising those orders scrupulously, and if you're not, then you are settingyourself up to losing that arrangement. And, if your orders don't actually provide equal parenting time, then you don't really have 50/50 custody.


Note: I'm actually "on your side." I believe that the present child support laws border on the insane. But, the law is what it is, and it's on no one's political agenda at the moment to change these laws -- so, if you don't learn to play (and pay) by the rules, then the child support train will run right over you like you weren't there at all.


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