Always helpful. I am blessed to have access to your resources.
A: Then he will have to prove that their has been a change in circumstances. The court has discretion to modify child support by allowing a deduction from income (in the formula child support calculation) of a parent who is suffering “extreme financial hardship” resulting from (i) extraordinary health expenses, (ii) uninsured catastrophic losses, or (iii) the birth or adoption of new children from another marriage or relationship (deduction here is for minimum basic living expenses of such children who are living with the hardship parent). Fam.C. §§ 4059(g), 4070–4072.
For the underlined items above I want to be sure I understand (i)(ii)(iii).
(i) Am I to understand extraordinary health expenses as being currently incurred expenses resulting from his own health needs - above and beyond his existing health care expenses which are currently only (his portion/cost of the standardized monthly health care insurance provided by his employer)?
ii. uninsured catastrophic losses - he will argue that since his insurance denied payment of his wife's restorative dental work, (which he is appealing) that this is an uninsured loss. I assume catastrophic to mean severe losses such as property loss from flood, uncovered emergency surgery, etc. and as you pointed out, he has not yet "incurred" a loss as she has not had the work done yet, correct? Also, do you agree that her situation would not be "catastrophic" in the conventional sense?
iii. the birth or adoption of new children from another marriage or relationship. He has a step-daughter from his current marriage, but she is age 11 (not newborn or adopted) which rules this out, correct? Last weeks support hearing confirms no hardship deduction to him for her.
I do not believe that a new spouse's hardships necessarily satisfy proof of a material change in circumstance. If there are already existing health care expenses, which are necessaries for which your spouse is liable, then that would justify a modification. However, discretionary expenses, not yet incurred do not make for a hardship, because they are not being forced upon the supporting parent. A similar argument would apply to legal expenses.
I want to be clear on the bolded portion of your response. He has existing health care expenses (his portion of the health care insurance provided by his employer) which I assume are necessaries for which he is liable. These expenses would not classify as "extraordinary health expenses," correct?
Based on your overall response notating Family Code and Case Histories in addition to my own MSA which states:
Once Wife's income is within $20,000 (ie. $62,000 or more for Wife and $82,000 for Husband), Wife shall pay one-half of the minor children's school tuition. Neither Party may cease payment of the children's school tuition without a 30 days notice of intent to cease payment to allow the Parties time to address the issue of cessation of tuition payments with regards to support and continued enrollment of the children in private school.
Am I correct in thinking that last year when my income was not within 20k of his (Per MSA) and (Per the Court) he was ordered to pay partial 2/3 of tuition - that the court's order did not encompass/adhere to a "proven" change of material circumstances (He did not present any other than him stating that he could not afford it.) and I should not have been made to share tuition cost?
Additionally, per our support hearing of 7/1/13, his income proved to of exceeded what he was claiming at the time of the Aug 2012 tuition judgment order. Clearly no "financial hardship" for him.
If yes, how/why does this happen? It seems to me that the law is not always fully applied. If you agree, do I have any recourse other than mentioning the situation today?