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In 1997 I was told by my divorce attorney that because I earned both my masters and bachelors during the marriege that he was entitled to half of my projected increased income over a HS diploma there was forensic accountant incolved and the whole bit. I was told that I should do whatever I could to not have to pay him that - so he got the house, the cars, got to claim two fo the three kids on his taxes and here is how the CS went down:
"That the parties are hereby specifically acknowlinging that should this case be tried that the court may have applied the CSSA and are acknowledging what the strict application of the CSSA would have been and are specifically agreeing to opt out of the CSSA. In this regard the parties acknowledge that Mr. laFalce's income for 1996 was $62,00 and Miss McGrath's income for 1996 was 16,000 and they acknowledge that was not based upon full time employment for all of 1996. And that the court could have, if it so chose, awarded Miss Mcgrath 29 percent of the full 62,000 less whatever his FICA obligations were. But the parties are agreeing to have this agreement supercede the strict application of the Child Support Standards Act.
And the reasons that they are doing it includes the amount of time Mr. lafalce is spending with the children, the fact this is a joint custodial agreement, the non-monetary contributions he has been making to the care of the children, but also specifically considers the distribution of the equitable distribution here and specifically his waiver of any claim to the enhanced earning capacity associated with miss McGrath's attainment of a bachelor's degree and master's degree and a teacher's certification during the course of the marriage.
Tha parties hereby agreeing that they...and it goes on.
Here is what I have learned that my lawyer did not protect me with at the time..
1. parents cannot make a contract that takes away their children's right to receive adequate support - They never could Family Court Act (FCA) s 461 (a) ensures this. The initial adequacy of an agreement may be challenged at any time. Strenge v Bearman, Pecora v. Cerillo, Priolo v Priolo, Sloam v. Sloam, etc.
2. DRL 240 (1-b) (h) and FCA 413 (1) (b) "would presumptively result....' "the agreement or Stipulation must specify the amount that the basic child support obigation would have been..."(step 3 of 4)
Sloam v Sloam
3. Child support is based on Gross Income - my x husbands rental incomes ($7000 + per month) were never taken into consideration... so I think Schallerv. Schaller applies as even the weak opt out missing step three and incoreectly applying step 4 (reasons) because the mention of Mr. LaFalce's salary of 62K is not his correct gross income.
What do you say? What does one do when lawyers and judges talk down to the citizen and ignore the law? Can I sue the original lawyers, the judge, whats to be done? I am sick of putting up with being ignored by the court and the lawyers?
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The difference between 29% of 62K and the 250 per week we recieved is over 48K plus applicable COLAS. In addition to that his net on his properties as reported in other court documents was 2K per month (after all expenses ) so that would be about $69,600. So at a minimum my children are out @120K If based on Gross it is $316,600. I'm sure that is a drop in the bucket for many, but it is 3 years gross salary as a teacher for me at the lower number and over 7 years gross pay at the higher figure.
I disagree with your answer about statute of limitations. Many of the findings in cases I mentioned and other cases state that there is no statute of limitations on invalid child support agreements and I disagree with your opinion of gross income as many cases cover that also - this rental income was in addition to his full time job as owner of a drycleaning business. Thank you for your time but I feel that I have gotten a similar brush off - as in 'its old news stop worrying about it' - it is not old news to me and my children - it is a daily struggle and the fact that so many folks in law brush off the law as windmills is one of the major problems with actual justice for everyone. One part you didn't know was that he took ownership of his father's 1.3 million dollar business and the rental properties while we were married and I waived rights to that too so I'm not so sure about the equitable balance bit - but you didn't know about that. The laws that I read discuss not being able to bargain away your children's child support. Thanks for your time - but I feel it was yet another answer from a lawyer who deals with so many cases and who are personally comfortable so pish posh with me and my little problem of what the laws actually say. I know I sound angry - because I am. I didn't go to school for law - I easily could have - foolishly I thought I'd educate young people about citizenship, culture etc. Anyway - enjoy your day. Maybe I'll go read Don Quixote - again.
Again Thank you for your time - Good day.
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