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Dave Kennett
Dave Kennett, Lawyer
Category: Family Law
Satisfied Customers: 27689
Experience:  25 years experience as practicing attorney
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I have been divorced for 5 years now and have two amazing children

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I have been divorced for 5 years now and have two amazing children with my ex wife. My ex wife didn't work while we were married because she didn't need to, I was the provider for the family. After the divorce, we came to an agreement on custody and child support outside of the courts and it has been working for 5 years now with the occasional argument from her stating she doesn't get enough support. Our agreement was as follows originally. Our children stay with her during the school week monday through friday to limit the disruption for them during school. I pick them up every Friday @ 4 and they come to my house until Sunday evening @ 7pm. I also come and see them Wednesday evenings. Over the summer while they are not in school, my ex wife and I agreed to alternating full weeks since they aren't in school. That takes care of the custody end of things, now onto the child support. We had agreed on $800 monthly $400 for each of our children to help cover expenses while they are with her since she doesn't work. Over and above this support, we would split everything else 50/50 such as school pictures, school clothes, sports registration and equipment. All of that stuff was over and above the normal support. We had agreed she would claim the kids on her taxes that she files with her new husband because she stated they are with her more and I have no right to claim them but in return she would give me $1000 out of her tax return. That happened once and after that, her new husband and her stated I had no right to that money. For the sake of not fighting I let the matter go. Also, while my children are coming with me for full weeks over the summer while not in school our agreement was that my support would be cut in half for June, July, & August. That had been working for 4 years until this year, she said that summer is 8 days shorter and I should pay her full support in August. I tried to talk to her about it but she just gets very verbally abusive so I gave in and said Ok to paying full support for August. She recently saw a birthday gift given to me by my fiance and get very upset and stated that if I can afford stuff like that I can afford more child support and she stated that she is going to be taking me to domestics and formally requesting child support. We have been divorced for 5 years and each and every year it's something new with her. What do you suggest that I do? I understand child support is something that is needed and I have absolutely no problem paying it if it assures that our children have everything they need, but nothing I do seems to be enough. I'm always the one changing and giving in to her requests. I just want things to be set in stone so they can't change. She has been threatening me with taking me to domestics since she left. I must say, it seems to me that it is more about the money than it really is about supporting our children. Any advice you could provide would be greatly appreciated. Thank you for your time.
-Could you explain your situation a little more?
Does your divorce decree have any language concerning support, custody or visitation or is everything left up to the two of you to agree upon?
Customer: replied 3 years ago.

Our divorce decree doesn't contain any language concerning support, custody or visitation. Everything has been agreed upon amicably but she has a habit of living beyond her means and when things get tight, she instantly comes to me for more money.

Dear JACUSTOMER - I completely understand the situation. I am somewhat surprised that none of your private agreement is in writing since most courts will not approve a divorce if there is not some written parenting plan or agreement. In any event, if there is simply a verbal agreement as to the issues involving your children then that agreement is not enforceable in court. So if you are having problems the best way to get thing "set in stone" is to file a motion with the domestic relations court to determine custody, support and visitation. Private agreements tend to fall apart as soon as one or both of the parties enter into new relationships and there are step parents or fiancees influencing the parent or, as I am guessing in your case, your ex wife having some jealousy of your new girlfriend. So having a court order as to custody and the other issues is the best and probably only way to solve the problem and have something you can enforce in court if necessary. I'm not certain of the ages of your children but once they get into their teen years the courts will also listen to their wishes as to custody. As kids get older they get more involved in extra curricular activities and having to alternate between parents every week etc. becomes more difficult unless the parents live nearby. All of these things change with time until kids get to 16 or 17 and then the courts basically let them live where thy please unless there is some inherent danger. For now it would be my suggestion for you to file a motion to set custody and support or get your ex to agree to a written parenting agreement. Child support is calculated by the court using the pre set court guidelines so if you go to court you will be paying child support according to that formula. Most family law attorneys can calculate the approximate support for your situation so you may want to consider getting a short consultation appointment to see where you would come out under your current financial circumstances. In the end, the only way to have assurance that the agreement will be enforced is to have everything in writing from the court.
Customer: replied 3 years ago.
I've heard that some courts will take into consideration that amount of money paid outside of the support system as long as there is proof it was paid such as monthly checks. Have you heard of this?
If there is a court order for support then the extra payments are considered the same as gifts by every court I know of. In your case there is technically no support so whatever you pay is not going to be recognized however you also would not be liable for any retroactive support since none was ordered. It really doesn't matter what you have paid up to this point with respect to a new order for support. Once you get a court order for support you should only pay that amount unless you want to give the children gifts directly.
Customer: replied 3 years ago.
The retroactive is what had me concerned but if you say I am not liable because there is no support order than I can check that off as one less worry. Thank you for your help.
There would be no reason for any retro active support. When I said the court does not recognize payments by personal agreement I was referring to situations where the obligor was order to pay support through the court and rather than doing that simply sent checks directly to the obligee. The you would have a situation where the court would say you were past due in support since they would not recognize the direct payments. In your case you were not under an order for support so even if you had paid nothing you wouldn't owe anything based on the court records. In your case the court would recognize that you had been making private payments but there would be no actual monetary credit toward anything. It would simply be a case where the court would start new court ordered payments from the date your motion was filed so there could be a few weeks of retroactive payments from the date the motion is filed.
Customer: replied 3 years ago.
She claimed she is going to tell the courts that I have not helped in anyway at all and just drag me through the mud. In the end for me I truly don't care about the money I just want our kids to be happy! If the courts will at least recognize that I am not what she plans to make me out to be, I am ok with what ever the out come as long as our kids have everything they need. This is all new to me and I've never had to go through anything like it.
I understand. This is exactly why I always tell everyone that they need a court order from the very beginning since private agreements generally fail sooner or later. She can say whatever she pleases in court and you can refute what she says as I assume you could prove that she is giving false statements about your involvement. Since there was no order to pay and you did what you did there simply is no reason for the court to punish you when no court order was violated.
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Customer: replied 3 years ago.
Thank you for your time and information.
No problem and thanks for using our service - Dave

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