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LawTalk
LawTalk, Attorney and Counselor at Law
Category: Family Law
Satisfied Customers: 27881
Experience:  30 years legal experience. I remain current in Family Law through regular continuing education.
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in 1997 my divorce included support that strayed from the CSSA

Customer Question

in 1997 my divorce included support that strayed from the CSSA 'by agreement' It did not include step three of stating what the CS would be. The judge simply stated that my X made 62K a year. That figure did not include his rental income and they only said 29% of 62 and that we agreed to stray from that to $250 due to an exchange of some marital assets. I've had several lawyers see it and say it is invalid but no one will do anything about it and Saratoga Family Court ignores my pleas. The support that my children did not get is more that 300K, now he is claiming he is unemployed and can't even pay the amount 287 a week plus the ordered 50 a week to make up for 6000. in arrears. i am in financial ruin right now - at wits end. I've read the laws - I've read the cases that have overturned invalid agreements but I am ignored (as is the law) in court. I am about to go postal at the injustice! Is there a champion of this? I have no $ but would be happy to be a poster child.
Submitted: 5 years ago.
Category: Family Law
Expert:  LawTalk replied 5 years ago.
Good morning,

I'm trying to wrap my head around your dilemma.

It appears that for one reason or another you and your ex agreed to child support payments of $250.00 at the time of the decree. Is this correct? Did you agree to that at the time?

Are you saying that you are seeking to enforce, in arrears, a much higher support amount because in retrospect you feel that he wasn't paying enough?

I’ll put forth my best effort in assisting you. When you are able to respond to my request for clarification of your situation, I’ll be able to assist you. In the meantime I would ask that you please stay on-line, just in case I need additional clarification from you regarding the factual circumstances relating to your question. Thank you for allowing me to help.

Regards,

Doug
Customer: replied 5 years ago.

Hello: Thank you for trying here...

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?

2.

Expert:  LawTalk replied 5 years ago.
Good afternoon,

While a completely empathize with your situation, I am terribly afraid that at this point in time I sense that you are doing little other than tilting at windmills.

The statute of limitations for any recourse you might have had against your own attorney for failing to protect your interests has long since passed.

Let me address each of your numbered issues and attempt to respond from a legal outsider's point of view.

1. While parents may not be able to simply do away with the support that they are entitled to, there is a difference between doing away with support and getting something in exchange for a variance from support guidelines. Importantly, child support is for the benefit of the custodial parent--not the child directly. This is made clear through decades of court cases which inevitably hold that the paying parent has no control over how the support payments are used by the receiving parent. The receiving parent is free to use the money as they see fit.

While the initial adequacy of the support agreement can be challenged at any time, the court will not allow a perversion of justice to occur by allowing someone who might have been in your similar position to retain all that was traded (the future income based on your college degrees acquired during the marriage) in return for the reduction in support, while at the same time taking away the benefit of the other party to that agreement and thereby forcing them to additionally pay the full measure of child support under the support guidelines.

The courts will always infuse equity into the situation where it is necessary. The fact is that it is not uncommon for the courts to approve a deviance from the support guidelines where it can be shown that it will not harm the best interests of the children. Your case simply stands out because of the size of the "trade" made. The judge in your case no doubt looked at the fact that while you were going to be getting less child support, that in turn you were not going to be paying alimony based on your potential income either. The trade off was that you got less support, but you did keep much more of your earned income.

2. While the code does indicate that the amount you are giving up in the trade must be specified, the court could easily, using common sense and looking at not the letter of the law but the intent of the law, rule that the amount was entirely capable of being ascertained from the decree by anyone with a rudimentary grasp of mathematics and therefor meets the standard of disclosure contemplated under the law.

3. I am not entirely familiar with the facts surrounding the rental properties. However, something does come to mind. There is a huge difference in the Gross income of a business, versus the gross income of an employee. While the failure to include the income he earned from the rental properties might have constituted an error worthy of review, unless the net income from those properties was $70,000, you've lost less than you really think.

Yes, I know that you will point to the code and argue "Gross Income". However, the support calculator never intended that a parent's business gross would be substituted for the net profit from the business.

A couple of examples:
a. A gas station owner has a million in annual sales--his business gross income--, but after employee salaries, rent/mortgage payments and cost of gas and sundries, she takes home just $75,000 a year. No one will expect the child support to be based on the $100,000.00 figure. If it were, then the support order would be more than the take home pay; and even less than that after the taxes were paid on the take home pay.

b. A business owner is in the business of offering rental properties. His gross income from the properties is $70,000.00 a year. However, there are property taxes of $8,000.00, mortgage payments of $45,000.00 and associated business expenses of $2,000.00. His real income from the business is not 70K a year, but only 15k.

My response to what appears to be your ultimate question is, that I do not believe that you have legal grounds for somehow undoing what has gone on in the past 12 years. You knowingly entered into an agreement that unfortunately turned out to be a bad idea in retrospect. However, the courts will be forced to look past the letter of the law and to look at what is equitable. In theory you recovered the "lost" child support through an increase in the money you kept from your post-divorce income.

I wish that for your sake I could say differently, and while there are no doubt learned legal minds who would disagree with my conclusion, I believe it to be an accurate evaluation of the situation.

I wish you well.

Thank you very much for having allowed me to assist you. It would be greatly appreciated if you would click the green Accept icon so that I can receive credit for having assisted you.

Best regards,

Doug

Expert:  LawTalk replied 5 years ago.
I intended to write $1,000,000.00 as the figure in my example in 3. a
Customer: replied 5 years ago.

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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