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How to vacate a child support order that was unjust. An objection was already done and denied (not even looked at) cannot do an appeal. What grounds can you resubmit and vacate a child support order.
Optional Information: State/Country relating to question: New York Already Tried: N
Thank you for your question. Although I am an attorney, I cannot represent you. However, I will give you the most thorough information I am able.
You mention the order is unjust, what do you believe it to be unjust?
thank you. sorry so much info and I was trying to keep it simpler for you to answer.
omgosh is this chat?
it is.
i didnt know. ive never been in chat. In New york they have pro rata share of health insurance my husband ex has medicaid yet he has my step kids covered under an HMO plan that is over 430 dollars a month
judge said since the plan is thru me (his wife) it doesnt cost him anything and that since my husbands ex has medicaid she is providing medical insurance therefore they cancel each other out!
No problem.
So the 430 a month is something your employer pays and not you?
in addition during court she testified that the reasons she needed an increase verbatim she cited "we no longer shop at walmart and the kids are more social" when they had a survived decree that wasnt merged. Per supreme court you cant change that type of order.
no I pay $430 dollars
So $430 per month comes out of your and your husband's bank account for insurance for his children?
YES
sorry yes.
Did he explain this to the court, because it does not sound like the court realized that this money came out of a joint account and/or was actually paid. It sounds like the court may have believed that either you were paying it out of separate funds or an employer was paying it.
no, he knew, it was written up in the sumation. he said because my husbands ex wife had medicaid they were both providing so no reason to deduct it. // and my husband was in iraq, when the order was stayed for 3 years. he increased it every year, retroactive arrears of 24,500 dollars, with now and additional basic support of $615 dollars, and also paying 100% of the $430 dollars towards medical insurance and ordered him to pay 58% of the non covered bills, which his ex is filing a violation against my husband to pay for braces for the two children over $7000.00 because she DID NOT use insurance....
this is too much for you I know on a just answer basis, but that is honestly what happened with the verbatim "we no longer shop at walmart and the kids are more social" reasoning...
Ok, I understand her reasoning. However, I am trying to figure out what the court did to determine whether there is a basis to undo any of it.
well someone put pressure on the judge and he said to make a motion for downward modification and to vacate it
but i dont know what "wording" to submit under..
Was this order made originally on a motion to modify the child support award downward?
no
she petitioned for an upward modification because the kids were older and the expenses were increasing.
was her motion granted? Apart from how the court treated the health insurance, do you contend the court erred in other ways in considering this motion?
her motion was granted. alot of ways they erred, she testified during court she gets extra money under the table, she noted nothing of extra expense.
is there a fancy lawyer wording that could be used for vacate.
her other reasons was she was pregnant again by her current husband and had to drop her hours at work
No, the term is vacate. He would bring a motion to vacate the order. However, the fancy work would be in justifying to the court in motion form why this order legally needs to be vacated.
to prove all the ways it was deemed injust?
but we can just put a motion to vacate an order?
You must set forth the legal authority (the law) you are relying on as the reason for this order to be vacated. Because it is "unjust" is not generally a reason to vacate the order.
but underneath it says under what grounds?
what grounds are acceptable or most usually used?
i guess that is what i am trying to ask.
That depends on the situation and circumstances. This is why I was trying to understand the situation, because I am trying to get a feel for the legal basis upon which the order can be set aside.
oh im sorry
please ask more and i will type clear answers
No problem. How did she justify not using insurance for braces? Did insurance not cover them?
they did. insurance was under her name. she and her lawyer say that the order does not state she has to use the insurance provided, only that my husband and her have to provided it.
That is a ridiculous argument, did your husband make and argument?
that one issue is pending right now, yes we have paperwork and will argue that. i know that is ridiculous.
but the magistrate gave us the option to vacate we just dont know what grounds :(
When and how did the magistrate give you this option?
the whole county is ridiculous she is married to a convicted felon, who used to be her sisters husband and even visitation court said thats not relevant!
because i was upset writing senators, and their office ended up calling the magistrate and asked how he could put retroactive arrears on someone who was in IRaq and he said he "vaguely" remembers it, and said well he can motion downward and to vacate it..
so odd i know!
i bet your head is spinning now. but its 1000% truth. and we are lost and need some help..
Then you may consider a motion to vacate or a motion to reconsider asking the court to reassess the health care issue because of the $430 per month that is being spent
so more like motion to reconsider would work better
because i think in ny that is part 6 motion ot reconsider...
It is easier to get the court to reconsider than to vacate a motion unless the judge did something blatantly wrong. With a motion to reconsider, you can submit evidence of the coverage of each insurance and the cost of each insurance.
thank you
:)
he blatantly changed a survived order
is that a reason?
Definitely. Not only that, it does not sound like he completely understood the health care issue.
thank you :)
hes an idiot :O)
Experience: I have a law practice that is largely dedicated to family law matters.