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socrateaser
socrateaser, Lawyer
Category: Family Law
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Experience:  Retired (mostly)
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Child Support Modification

Customer Question

I am pro se, filing a second child support modification motion in NC Family Courts. I lost my first child support modification motion yesterday. The judge said "Even though the child support calculator shows you should be paying less than you currently pay, I cannot legally lower your child support payment amounts, because there is no proof that there has been a substantial change in you or your ex's financial situation to justify the change since the original child support order was entered in Jan 2011." My Jan 2011 Financial Affidavit shows I was making $0, because I was unemployed. I cashed in 401 K money starting in March 2011 to pay my bills. I have my 2011 Tax Return documents that show I had an income in 2011, for $186,000. One problem I foresee is that I did not file an amended financial affidavit in 2011, after I cashed the 401 K money in, based on the advice of my attorney I was working with at the time. My question is, if I re-file for another child support modification hearing and produce my 2011 Tax Return showing I had income of $186K, and produce pay stubs from 2012 showing that I am going to make about $55K for 2012, will that work. I am not sure, because of 1/2011 financial affidavit shows I had income of $0, which I did. Next, I am having great difficulty with the current family court judge for our case not being fair. What is the process, if any to get another judge appointed? Also, when I file my motion for child support mod next week, can I attach my 2011 Tax Return to the filed copies, so the judge and everyone can see that even though I am filing a motion a few days after losing the prior hearing, I do have proof now and this is not frivilous. Last, what does a person do when they are demanded to pay $1,500 per month, but if I continue to pay that, I don't have enough money to live on. Does it help to produce receipts, leases, etc showing that I can only pay $1,000 or go broke?

Submitted: 1 year ago.
Category: Family Law
Expert:  socrateaser replied 1 year ago.
I'm a bit confused by your allegations. Questions:

1. Your current support order is based upon income of how much (I don't care what the affidavit states -- I want to know what the current court order states as your income)?

2. The order was ordered Jan 2011?

3. Was the current order agreed to between you and the other parent, or was it ordered after an adversarial hearing, without your agreement?

Thanks in advance.

NOTICE: My goal here is to entertain while educating the public about the law. I hope my answer is useful and informative to you. During our conversation, the website may ask you to rate my answer. If you rate my answer lower than the middle rating, then the website retains your entire payment, and I receive nothing. It is entirely your choice as to how you rate my answer. However, because your payment to me is in the nature of a donation/gift, rather than as compensation for any services rendered, you are entitled to know how your rating affects the final distribution of your donation.

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Customer: replied 1 year ago.


1. $0, the order, NOT the affidavit


 


2. Yes, 1/2011


 


3. Agreed upon by myself and my ex on the bad advice of my attorney, who was fighting cancer at the time and recused himself later from my case, because of medical reasons at a later time

Expert:  socrateaser replied 1 year ago.
That's what I thought. Your former attorney was a lot sicker than he knew. If he's better, you may want to consider contacting a legal malpractice lawyer, because using income of $0.00 when you actually had income is the reason why you can't show changed circumstances. The judge finds that your income has increased as a matter of law, yet you are requesting a decrease in your support obligation.

It seems to me that you would have to ask the court to set aside the previous order. If more than one year has passed, then you would need to file an independent action to set aside judgment -- otherwise your request would be outside the statute of limitations for setting aside judgment based on mistake.

If you ask the court to modify, no matter what you do, the court must find that your new circumstances are not changed, because your current order is based on $0 income.

Based on all of the above, I do not see how you will be able to handle this without hiring a lawyer. You need to get the current order set aside, and because the current order is more than one year old, that means filing a separate lawsuit for a declaration that the prior order was entered by mistake by your previous counsel, due to his allegedly defective mental state.

In my view, this is the only way that you will be able to obtain a modification of your support obligation.

For a competent family law attorney referral, see this link.

Hope this helps.

NOTICE: My goal here is to entertain while educating the public about the law. I hope my answer is useful and informative to you. During our conversation, the website may ask you to rate my answer. If you rate my answer lower than the middle rating, then the website retains your entire payment, and I receive nothing. It is entirely your choice as to how you rate my answer. However, because your payment to me is in the nature of a donation/gift, rather than as compensation for any services rendered, you are entitled to know how your rating affects the final distribution of your donation.

If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!

socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 33850
Experience: Retired (mostly)
socrateaser and 9 other Family Law Specialists are ready to help you
Customer: replied 1 year ago.


Thanks, what are my options and what is the process for getting a new trial, if I want to consider continuing pro se?


 


If I have already been declared indigent by the criminal courts in NC, and have been appointed a public defender for a criminal case, can I possibly get a public defender for family court? I am beyond broke and am upside down financially about $1,200 per month


 


I apprecate your help. I rated you excellent and tipped 20%. Thanks!

Expert:  socrateaser replied 1 year ago.

Thanks, what are my options and what is the process for getting a new trial, if I want to consider continuing pro se?

 

A: I've given this issue some additional thought, and I now believe that the independent action is not the way to go. I believe that the court would dismiss the action due to the one-year limitation found in Civ. Proc. Rule 60(b). I think perhaps the better option is file a motion to set aside under Rule 60(b)(6) and try to show that you suffered from the "undue influence" of your own attorney. Ordinarily, were the influence coming from the other party, you would be barred by the one year limitation. But, because it is your attorney who you would claim unduly influenced you to agree to the support order, because the attorney was ill and he was trying to coerce you to finish the case, that would avoid the one-year limitation, and the court would have to hear your evidence. If successful, then you could get an entirely new support order.

 

Re the process, I can't draft pleadings in this forum -- the best I can do is provide links to relevant materials that you may be able to find in a university or public law library (click here). A civil practice guide with have sample pleadings to set aside a judgment or order. Alternatively, you can try legal aid, for a free or low-cost lawyer.

 

If I have already been declared indigent by the criminal courts in NC, and have been appointed a public defender for a criminal case, can I possibly get a public defender for family court? I am beyond broke and am upside down financially about $1,200 per month.

 

A: The court cannot appoint a lawyer in a civil action, except where the party is legally/mentally incapacitated.

 

Hope this helps.

 

 

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