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Ely
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 11655
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I was just recently told by my attorney that they aren't

Customer Question

I was just recently told by my attorney that they aren't going to file my motion to modify child support because they believe my support with go up. This is complete news to me since it completely contradicts what they have been telling me for the past few months so I was hoping I could get some clarification.
My wife is active duty. Every so often she is required to relocate for a promotion in order to keep or increase ranking (mandatory). In August she was selected for a promotion and was given orders to report to her new duty station in October. I was working for the Federal Government was unable to transfer to her new duty location with my job. Despite numerous applications/interviews I have had to move and I am currently unemployed.
However, despite being unemployed, I still have an income of over $2700/mo due to VA disability. I also receive a stipend to go to school. Since I was unable to transfer with my government job or find a new job I enrolled in school and I am pursuing a degree for which I receive a monthly stipend to do.
For some reason my attorney does not believe this is considered to be involuntary. I really can't wrap my head around that since I had no choice unless I was expected to separate from my pregnant wife and 1.5 year old son who moved on military orders.
Please help me understand what they may be looking at that I am missing. When I was employed my income was over $5000/mo so I don't see how I could possibly be expected to pay MORE
Submitted: 1 year ago.
Category: Family Law
Expert:  Seattle Scott replied 1 year ago.

If your support was already based on the fact that you are supporting a child from a new relationship, I don't see how your support would go up or down due to you relocating with your new family and having to quit your old employment. You are not entitled to disadvantage your "old" child or children by getting their support lowered because your current wife had to relocate and earn more pay. Your loss of employment was not unavoidable - it was not out of your control.

But once your new child is born you should be able to get a reduction in support paid toward the "old" child or children, so all your children are considered equally. Once you complete your schooling and get new "replacement" employment, you can base your support on your new income, even if lower than the old income.

I am giving you my unvarnished opinion.

Customer: replied 1 year ago.

Why do you believe my loss of employment was not unavoidable? When a spouse is active duty and receives orders to relocate, the other spouse is expected to separate from his family in order to maintain employment to meet child support obligations that were calculated under different circumstances completely?

I was under the impression that relocating and losing a job related to having an active duty spouse get PCS (Permanent Change of Station) orders that leave you unemployed is not considered voluntary or in my control.

Expert:  Seattle Scott replied 1 year ago.

Could spouse have declined the promotion and thus avoided the PCS? Is this an Indiana court support order?

Customer: replied 1 year ago.

No. She is expected to relocate if she wants to maintain employment. The only "option" she gets is she can submit a regional preference as to an area should would ideally like to go. She submitted to be closer to my daughter in Indiana and although she didn't get her first pick it was still amongst the top.

The child support order is now registered in Indiana. It was originally set in Arizona.

Expert:  Seattle Scott replied 1 year ago.

What is the current distance between you and daughter and what was it before you moved? How has the relocation affected your visitation in terms of frequency and duration?

Customer: replied 1 year ago.

We were approximately 1400 miles away (21+hours driving) and we are now about 650 miles away (Less than*****.

I am currently pursuing a change in parenting time because my ex will not allow my daughter to travel. We are now much closer so I anticipate that changing.

Expert:  Seattle Scott replied 1 year ago.

Ok, 650 miles is not close enough to argue that you quit your job and relocated to be closer to child. If you were with about 150 miles that argument might work. Do you think you can convince a judge that you will have a higher income than before, once you get your degree or finish your current education program?

Customer: replied 1 year ago.

Yes, I believe I will have a higher income once I am done with my degree. There is absolutely no way I will ever find a job that has the income I was making without an education. Unfortunately, I was not able to keep that job due to my wife's military orders and having to relocate.

Again, my argument is not that we relocated to be closer. My wife had to change duty stations; however, we attempted to get as close as possible. There is absolutely zero options for her to be within 150 miles of where my daughter is- impossible. So yes, we moved much closer but that is because we are lucky she wasn't forced to move further.

Expert:  Seattle Scott replied 1 year ago.

In what state does your daughter reside? I assume no one is in Arizona any more, correct?

Expert:  Seattle Scott replied 1 year ago.

Assuming support will be modified under Indiana law, here is the applicable support statute for your situation:

3. Unemployed, Underemployed and Potential Income. If a court finds a parent is voluntarily unemployed or underemployed without just cause, ( my emphasis) child support shall be calculated based on a determination of potential income. A determination of potential income shall be made by determining employment potential and probable earnings level based on the obligor's work history, occupational qualifications, prevailing job opportunities, and earnings levels in the community. If there is no work history and no higher education or vocational training, the facts of the case may indicate that Weekly Gross Income be set at least at the federal minimum wage level.

So I would argue that your relocation was necessary and not "voluntary" and that you are seeking additional job or income skills to replace the income that you lost, after you looked for replacement income employment in your new location. Your school stipend will count as income, ( as well as the disability benefit) but you can deduct the school expenses, as you would business expenses, up to the amount of the stipend.