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Law Pro
Law Pro, Lawyer
Category: Family Law
Satisfied Customers: 24870
Experience:  20 years practicing family law from divorce, custody, support, alimony to equitable distribution
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Separated for 2 years now after being married for 5 years.

Resolved Question:

Separated for 2 years now after being married for 5 years. No temporary child support or spousal support for first 2 years of separation. Then i field a motion for child support this year. Due to bad legal advice, I signed a stipulation wherein I received CS of 1,700 and I pay temporary SS of $1,700 plus some of my bonus which is about $700/mo so average temporary support is $2,400. I have custody of our 2 kids and I pay a huge mortgage. This temporary SS which was effective Dec 2011 is causing me undue hardship. I lost a motion to vacate based on mistake of law (another separate issue). What can I do now?
Submitted: 5 years ago.
Category: Family Law
Expert:  Law Pro replied 5 years ago.
Then file a motion for modification.

How long ago was the SS order entered?
Customer: replied 5 years ago.
I signed it on 2-15-2012 with retroactive effective date of 12-21-11. SS recepient has been self-supporting for the past 2 years. I just received a really bad legal advice from a lawyer who was going trhough a divorce himself so he just wanted to get rid of my case.
Expert:  Law Pro replied 5 years ago.
Wow. Your only option is to file a motion for modification of the SS order. Within your claim of modification you should also be asking for assistance from the other spouse for assistance for the mortgage payments which is the primary residence of the children.

The court can (and should) order them to pay a portion of your mortgage payment too (which is a marital debt) if the payment is more than 25% of your net income.

The only question is - that there must be a "substantial change" in financial circumstances to get a modification and since the order is so recent it's going to be tough to allege.

What you can say to accomodate that requirement is that your house payment went up or your utilities just took a substantial increase.

See if the judge will go for that - otherwise your stuck with the current order until there is a substantial change in financial circumstances unless there is some other reason you can present to the court.
Customer: replied 5 years ago.

Is there a specific code section for the 25% rule? Also, I am taking the house, he is not interested in it because it is underwater. Does that matter?

 

As for my old lawyer, are there sanctions I can ask the court to impose on him?

Customer: replied 5 years ago.
Another thing, I thought you can file a modification at any time since it is a TEMPORARY SS.
Expert:  Law Pro replied 5 years ago.
NO, that doesn't matter as to the house being underwater - you are trying to provide a stable environment for the children which is why are you staying the house regardless.

No, no particular statute - mortgage payments made to maintain the children’s home during separation or after divorce are considered “third party payments” of support rather than “direct payments,” i.e. payments made to a third party for goods or services the children receive rather than to the children’s custodian directly .


But you can and should ask for such.


As for sanctions to your attorney - you can file a complaint with the state Disciplinary Board about what you think he did wrong or their misconduct.

That's really your only recourse as to the attorney.


Yes, it's temporary but the court doesn't want someone to file every other week - you must allege there has be a substantial change in circumstnances or the judge won't allow you to proceed with a modification. You need a judge to OK a modification hearing.
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Customer: replied 5 years ago.

But I am already receiving child support, so should I ask for that separately and file a motion even if in the property division, my intent is for me to get the house even if it is underwater?

Expert:  Law Pro replied 5 years ago.
NO. In your child support order the other spouse should be giving you monies for the house payments that your making to accomodate the child.

As I stated before, mortgage payments made to maintain the children’s home during separation or after divorce are considered “third party payments” of support rather than “direct payments,” i.e. payments made to a third party for goods or services the children receive rather than to the children’s custodian directly .