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ScottyMacEsq
ScottyMacEsq, Attorney
Category: Legal
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Experience:  Licensed Texas General Practice Attorney
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i divorced in 2007 via a marital Agreement that separated in

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i divorced in 2007 via a marital Agreement that separated in half of liquid assets, and left our house to my wife entirely. I also agree to pay $5,500 per month of family support. Our three children are in college paid with a saving account that I had already set up a long time ago, fully funded for four years of college for each of the child. I have been unemployed since 2008 and have not been able to find a job. I have continued to pay the $5,500 out of my saving which are now dangerously low. Can I stop paying the $5,500 per month, at least until I find a job? Meanwhile my ex-wife has been working in a safe job earning $ 84,000 a year. She has no expenses concerning the children?
Thank you

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

Just to be clear, your marital agreement was incorporated into the divorce decree signed by the judge?

ScottyMacEsq :

Assuming that is the case, you absolutely should not fail to pay without authorization from the court. You can file a motion to modify the order for child, spouse, or family support,if you can show a material change in circumstances from when the order was initially entered. If the judge ordered a child support amount below the guideline amount, you can ask to change that amount at any time. You do NOT need to show a change in circumstances. This is true even if your non-guideline child support order was reached by stipulation (agreement) between the 2 parents.


There are many good reasons why a child support order might need to be changed. Some of these reasons are:


 



  • The income of 1 or both parents has changed;

  • One parent has lost his or her job;

  • One parent has been incarcerated;

  • One parent had another child from another relationship;

  • There have been significant changes in how much time the child in the case spends with each parent;

  • The child's needs may have changed and there may be more (or less) costs for child care, health care, or education; and

  • There have been changes in any of the factors that are used to calculate child support.


If the parents (and the LCSA if involved in the case) can reach an agreement on a new amount of child support, they can write it up as a stipulation and give it to the judge for signature and to have it become a new order.


But if the parents cannot agree on the change, 1 of the parents (or the LCSA if involved in the case) must file a motion with the court asking for a change (called a "modification").


Keep in mind that unless the judge signs a new court order, the existing child support amount and order will not be changed. So, to protect yourself, even if you have a verbal agreement with the other parent to change the child support amount, put it in writing and have a judge sign it. That way you have a current child support order that reflects the current amount.

ScottyMacEsq :

CHILD (or family) SUPPORT CANNOT BE CHANGED RETROACTIVELY! This means that if you lost your job 3 months ago but are just now filing papers in court to change your support order because you have no income, the judge is NOT allowed to make an order going back to the day you lost your job. The judge can ONLY change your child support from the date you filed your papers in court asking for the change. So you will not only be unemployed, but you will also owe 3 months of child support at the old amount plus whatever interest is accruing on that back (past-due) child support.

ScottyMacEsq :

You can seek help for filing such a modification through your local family law facilitator: http://www.courts.ca.gov/selfhelp-facilitators.htm

ScottyMacEsq :

Here is the process:

ScottyMacEsq :

To ask for a court hearing to change your existing child support order:


1. Fill out your court forms
Fill out:


 



Read Which Financial Form - FL-155 or FL-150? (Form DV-570) to find out if you can use the simpler Form FL-155. And use the Information Sheet for Request for Order (Form FL-300-INFO) to learn how to fill out Form FL-300.


2. Have your forms reviewed
Ask your court's family law facilitator to review your paperwork. The facilitator can make sure you filled it out properly before you move ahead with your case. You can also hire your own lawyer to review your papers or to get legal advice, either with your entire case, or just the parts of it that you may need more help with (called “limited scope representation” or “unbundling”). Click for help finding a lawyer. Click to learn more about “limited scope representation.”


3. Make at least 2 copies of all your forms
One copy will be for you; another copy will be for your child's other parent. The original is for the court. If the LCSA is involved in your case, make 3 copies.


4. File your forms with the court clerk
Turn in your forms to the court clerk. The clerk will keep the original and return the copies to you, stamped "Filed." You may have to pay a filing fee. If you cannot afford the fee, you can ask for a fee waiver. If the LCSA is involved in your case and support is the only issue, you will not be charged a filing fee.


5. Get your court date
The clerk will give you a court date and write it on your Form FL-300. If you are also asking for custody orders, you may also get a date for mediation.


6. Serve your papers on the other parent (and the LCSA if involved)
Have someone at least 18 (NOT you) serve the other parent and the LCSA (if involved) with a copy of your papers and a blank Responsive Declaration to Request for Order (Form FL-320) and blank Income and Expense Declaration (Form FL-150).


You can serve the other parent (and the LCSA if involved) by mail. You can serve the other parent (and the LCSA if involved) by mail. It must be done at least 16 court days before the hearing plus 5 calendar days for mailing. And remember, someone else — not you — must mail the papers. You can also have someone else serve your papers in person, and if so, it must be done at least 16 court days before the hearing.


For more information about "service." Look at the front of Form FL-300 to see if the court ordered you to serve any other documents.


7. File your proof of service
Have your server fill out a Proof of Service by Mail (Form FL-335) for the other parent (and another for the LCSA if involved in the case). You must then file the Proof (or Proofs) of Service with the court. It is very important your server fills out the Proof (or Proofs) of Service correctly. If possible, have your family law facilitator review this paperwork to make sure it was filled out properly.


If the papers were served in person, your server has to fill out a Proof of Personal Service (Form FL-330).


8. Go to your court hearing
Go to your court hearing, and take a copy of all your papers and your Proof (or Proofs) of Service.


Read Going to Court to find out how to prepare for your court hearing.


Keep in mind family law facilitator can help you mediate your child support issues. So even after you ask for a court date, you can try to work out child support with your child’s other parent, and the family law facilitator can help you. If you can work out an agreement, the facilitator can help you write it up and turn it in to the judge for his or her signature, making it a court order. If the LCSA is involved in your case, they will need to sign the agreement as well. If you do not reach an agreement in mediation, you can still go in front of the judge so he or she can make a decision in your case. The facilitator will not be able to write up the agreement if the LCSA is involved in the case since they have to agree to and sign any agreement between the parents.


After the court hearing
Once the judge makes a decision at the court hearing, the judge will sign a court order. Remember that the court may make child support orders as well as medical support orders.

ScottyMacEsq :

again, if you do this without permission of the court, you can be held in contempt of court, which means you would still owe the amount that was ordered, as well as any incidental expenses, attorneys fees, court costs, interest accrued. You need an order relieving you of your liability to pay these amounts to be able to stop the payments without fear of reprisal.

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

all i want to know that in principal if i don't have an income because i am unemployed, I don't have to pay anymore (i,e, by liquidating my assets/savings, especially since she has a job an a proper income.

ScottyMacEsq :

In principal, you still have an obligation to pay. If you don't pay (which you would have a good reason to) the support will accrue. That means that you will owe it at some point, plus interest.

ScottyMacEsq :

And you can still be taken to court for failure to pay, and have additional sanctions imposed against you.

ScottyMacEsq :

Getting a modification would help to avoid that.

Customer:

but a judge can change that just by looking at the fact that I unemployed and I am 59 years old....while she has a good job and no children expenses.

ScottyMacEsq :

Yes.

ScottyMacEsq :

But the judge has to change that, otherwise the previous order will still be in effect.

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

understood. In other words, I have good and valid reasons to stop paying (included in your first responses, i.e. job loss) but a judge has to confirm that.

ScottyMacEsq :

Yes. It's not that a judge has to "confirm" but sign off on.

ScottyMacEsq :

That is, the modification order has to be granted by a judge.

Customer:

Thank you, XXXXX XXXXX

ScottyMacEsq and 8 other Legal Specialists are ready to help you
Customer: replied 3 years ago.

sorry, I forgot: will the judge take into account my asset versus hers?

Thank you, and again, good luck to you