I went to court back in Dec 2011 for an initial child support and custody hearing we settled and finalized the same day. I was never married to this man. At that time I had a lawyer and he did not. The child support was set at $478/mo but me having too much pride and not wanting his money at all only took $250/mo. The judge told me at that time that was fine since he on occassion keeping my daughter more than 2 days a week. But if anything changed i was welcome to come back. Now 5 months later I have realized that I do needed the additonal help and filed a child support modification. I am keeping my daughter more now and he only keeps her the minimum 2 days a week. He lives with his mother at no expense even though he states he does but never provided any proof at the last hearing. I own my own home that I built when he and I were dating. I am also recently engaged and getting married in september. My daughter also shares a room with him. Since I have filed the modification he is mad and doesn't think I should get the full amount of child support that was initially calculated so this time he did hire a lawyer. What should I have prepared to support my case? Also what should I expect from his lawyer? I can't afford one this time due to paying so much last time? He feels my soon to be husbands income should be included..... Should it? Also does my ex part time income count? I hope I didn't screw my self and lose more money.
State/Country relating to question: West Virginia
Thank you for allowing me to assist you.A new spouse's income is not included in calculating child support. Child support is based on the parties' incomes. The only other issues are the costs of child care of how much child support or alimony either parent may be paying to a third party. Where there are no child support or alimony orders, then the only issues are the parties' incomes and the costs of child care. If those numbers are clear, there is nothing to argue about and the court will calculate the child support based on those numbers. In that case, having an attorney does not help. An attorney helps if there is a disagreement as to how much either party earns, or how much is paid in child care. For example, you mention the question of whether your ex's part time job should be included. A lawyer could help argue this issue. The statute simply says to include each parents' income and does not discuss any difference for a second part time job. However, the lawyer may come up with some court case that I have not found that may address this issue.Another issue that the lawyer could argue would be whether a modification should be permitted at all. The law says that the court may modify a child support order when a substantial change in the circumstances of a parent or another proper person or persons occurs and that the order that would result in at least a 15% difference constitutes a substantial change.Finally, anyone can argue that the Court should disregard the guideline calculations. They can only win that argument, however, if:the guidelines do not take into account the economic impact of the following factors that may be possible reasons for deviation:
(1) Special needs of the child or support obligor, including, but not limited to, the special needs of a minor or adult child who is physically or mentally disabled;
(2) Educational expenses for the child or the parent (i.e. those incurred for private, parochial, or trade schools, other secondary schools, or post-secondary education where there is tuition or costs beyond state and local tax contributions);
(3) Families with more than six children;
(4) Long distance visitation costs;
(5) The child resides with third party;
(6) The needs of another child or children to whom the obligor owes a duty of support;
(7) The extent to which the obligor's income depends on nonrecurring or nonguaranteed income; or
(8) Whether the total of spousal support, child support and child care costs subtracted from an obligor's income reduces that income to less than the federal poverty level and conversely, whether deviation from child support guidelines would reduce the income of the child's household to less than the federal poverty level.
What should I have prepared to help support my case and why I need the increase?
If you just show what your income is, what his income is, and any child care costs you incur (if any), that should be sufficient. If his attorney made the argument that his second job should not be counted, you might want to do some more legal research on this issue, but I would start by looking at what law the lawyer cites in his or her argument.I don't see any basis for a deviation from the guidelines, but if his lawyer makes such an argument, then you will want to respond to his or her argument. Basically, until you know what his attorney's position is, all you can really present is your income, his income and your child care costs.
I have practiced family law for more than 14 years, focusing on child custody and domestic violence
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