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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Family Law
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Experience:  I provide family and divorce law advice to my clients in my firm.
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My boyfriend lost his job due to lower back problems. Dr. put

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My boyfriend lost his job due to lower back problems. Dr. put him on restrictions of no lifting more than 30lbs and no bending or twisting, which the employer was unable to accomodate the restrictions. Has had 1 back surgery, Dr requested approval for disc replacement surgery which insurance co. denied. He was making $17.00 per hr working 40-50hrs when child support was set at $1028/month for 3 children. He tried for 2yrs to get on disability being denied twice. After not working for 2yrs finally found very light weight work he is able to do, but only receives $7.25/hr & only able to work 9-12hrs per week (approx. $100 gross/2wks). He requested child support modification, it was recommended by state to be reduced to $40 per month based on his present income. The mother requested a hearing. He has the appeal disability hearing in a month so the judge postponed determination for child support until results of that. Judge however stated that if didn't get approved for disability "he was definately going to be paying more than $40 per month". What is considered "substantial injustice" when determining whether the court can use earning capacity or actual earnings. He has no education, no other jobs skills that with his back problems would make him capable of earning more income plus numberous Dr. records verifying his condition.
Submitted: 2 years ago.
Category: Family Law
Expert:  Dimitry K., Esq. replied 2 years ago.
Thank you for your question.

I see that you are referencing Court Rule 9.11, subsection 1 and subsection 4. There is no express definition as the concept of "substantial injustice" is written to be extremely fluid and subjective, meaning that the court has the right to evaluate on a case by case basis and find whether or not the situation would merit the exception.

I did find one case, listed below, that used the "merit" system under 9.11 to hold a party to a higher amount due to their expertise and experience, and voluntary termination:

http://www.iowacourts.gov/court_of_appeals/Recent_Opinions/20101110/0-597.pdf

Beyond that it is up to your boyfriend to provide evidence that he is unable to work even if willing, and use that to show that based on his specific situation today, he would experience substantial injustice if forced to pay a higher amount when he is unable to earn it even if so desired.

Good luck.
Customer: replied 2 years ago.

Ok, this was helpful, but would like a little more information if possible.

 

First he did not volutarily quit his previous job he was "constructively discharged" due to inability to perform the necessary duties of his job, based on his Dr. work restrictions. He did in fact win a settlement from his previous employer for this (deducting taxes & lawyer fees all was sent to his ex for payment of back child support). Do you feel this information would be helpful in showing that he in no way is trying to lower or get out of paying support for his children.

 

Second his previous denials for disability stated denial due to the fact they did not find that he was "unable" to work "any" job, so not likely to be approved this time, forgo his getting a job that he is "capable" of doing with his back conditions. For reference he has been a MIG welder for over 10yrs and now works at Dairy Queen as a cook. He his capable of working just not at the capacity he had previously and definately not in a highly physical factory type of job as he had done for most of his working years.

 

So my concern is are the courts able to say he "should" be earning more income solely based his denied disability claim and potentially set his Child Support above what he even brings home in gross per month?? He is ok with it being more than $40 per month, at the moment they are taking 50% of his gross which amounts to $100/month and he's fine with that. Just worried they will set an amount for example of $400 when he only grosses $200/month. As I already provide majority of support for him, and his children during visitations this is of great concern to me.

 

So this basically boils down to him needing to get as much current updated medical information (as he has no medical ins. & limited income he has not been to see any doctor for over 1yr after they denied his back surgery), to prove that he is able to work, yet not at the same capacity he had in the past which inturn restricts his income potential, now and future years.

 

Thank You

Expert:  Dimitry K., Esq. replied 2 years ago.
Thank you for your follow-up. I will respond to each paragraph separately.

First he did not volutarily quit his previous job he was "constructively discharged" due to inability to perform the necessary duties of his job, based on his Dr. work restrictions. He did in fact win a settlement from his previous employer for this (deducting taxes & lawyer fees all was sent to his ex for payment of back child support). Do you feel this information would be helpful in showing that he in no way is trying to lower or get out of paying support for his children.

I do not see that as relevant--I simply see the argument that claiming "substantial injustice" will take place if he is requested to pay above the guidelines as legitimate, not for paying under the guidelines which is where he is currently listed.

 

Second his previous denials for disability stated denial due to the fact they did not find that he was "unable" to work "any" job, so not likely to be approved this time, forgo his getting a job that he is "capable" of doing with his back conditions. For reference he has been a MIG welder for over 10yrs and now works at Dairy Queen as a cook. He his capable of working just not at the capacity he had previously and definately not in a highly physical factory type of job as he had done for most of his working years.

I understand but it would be up to him to show that he has been zealously attempting to obtain employment based on his skill level and taking his disability into account.

 

So my concern is are the courts able to say he "should" be earning more income solely based his denied disability claim and potentially set his Child Support above what he even brings home in gross per month?? He is ok with it being more than $40 per month, at the moment they are taking 50% of his gross which amounts to $100/month and he's fine with that. Just worried they will set an amount for example of $400 when he only grosses $200/month. As I already provide majority of support for him, and his children during visitations this is of great concern to me.

The courts might say so, but to fight against it, as I pointed out above, showing evidence of seeking other employment above the current position would be likely seen as sufficient.

 

So this basically boils down to him needing to get as much current updated medical information (as he has no medical ins. & limited income he has not been to see any doctor for over 1yr after they denied his back surgery), to prove that he is able to work, yet not at the same capacity he had in the past which inturn restricts his income potential, now and future years.

Correct, and that is his duty and his obligation to prove to the courts.

 

Good luck.

Customer: replied 2 years ago.

One more quick question.

 

So even though he has a job, he should still continue to apply for other jobs within in skill level. If he is turned down full-time better paying jobs say due to not being able to pass a work required physical, this information might be beneficial in showing "substantial injustice".

 

This information has been helpful, gives me some information to work with in collecting data/medical records etc., to provide to the courts and will hopefully give us at least a heads up when we have to go back to court in a few months.

 

Thanks Again

 

 

Expert:  Dimitry K., Esq. replied 2 years ago.
Thank you for your follow-up.

That is correct, he has to show that he is attempting to obtain employment that is more indicative of his training and skillset. The more he can show that he attempting to work at his level in good faith, the harder it would be for the courts to claim that he is intentionally staying underemployed.

Good luck and take care!
Dimitry K., Esq., Attorney
Category: Family Law
Satisfied Customers: 36936
Experience: I provide family and divorce law advice to my clients in my firm.
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