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FamilyAnswer, Lawyer
Category: Family Law
Satisfied Customers: 27549
Experience:  10 + years of handling Family Law, Divorce, Child Custody and Child Support cases
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I have shared custody of my son. His mother is currently the

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I have shared custody of my son. His mother is currently the primary and I pay almost $400/mo support. She used to work but got 'injured' a few years back. She applied for disability and was denied three times. Her husband says she can work, she just won't. She claims she's 'in pain' all the time. Running the numbers, I see a significant difference between what I'm paying now and what (it appears) I should be paying if her ability to work is considered. I live in SC. Thank you for your help.

Hi! I will be the professional that will be helping you today. I look forward to providing you with information to help solve your problem.

I certainly understand your situation. Could you please clarify a few things so I can better answer your question? When the child support was previously ordered, was her salary considered and used to factor the amount? Has there been any modification since the amount was first ordered by the Judge? What salary/figure are you using to calculate this and how do you know that is what she could be earning?

Customer: replied 5 years ago.
I honestly don't remember and I don't have access to the court order right now. Only been a slight mod since (<$25) from a mutual verbal agreement. I make $3700/mo gross and I'm using $1200/mo gross as hers (income she had when she got 'hurt'). I also figure 215 days her/150 days mine, $50/mo ins expense (childs part) and $1200 child care expense (both mine) to cover his summer camp. My son is 14 (also, does SC provide a legal age for minors to decide where they want to live?).

Mel, thank you for that additional information. The court can consider a modification of child support, if there has been a substantial change in circumstances. The court will look at the following factors, when deciding if the amount you currently pay, should be reduced. Some of these were considered at the time of the divorce and others are still relevant and can be used:

  • Educational expenses for the children or the spouse.
  • Equitable distribution of property.
  • Consumer debts.
  • Families with more than six children.
  • Un-reimbursed extraordinary medical or dental expenses.
  • Mandatory deduction of retirement pensions and union fees.
  • Support obligations for other dependents living with the non-custodial parent or non-court ordered child support from another relationship.
  • Child-related un-reimbursed extraordinary medical expenses.
  • Monthly fixed payments imposed by a court or operation of law.
  • Significant available income of the child or children.
  • Substantial disparity of income in which the non-custodial parent's income is significantly less than the custodial parent's income, thus making it financially impracticable to pay what the guidelines indicate the non-custodial parent should pay.
  • Alimony
  • Agreements reached between parties. [Based on South Carolina Code of Laws Section 20-7-852]
  • If the amount you pay now was originally ordered by the court, it would have included her income at the time ( please let me know if I am wrong and it did not). If that is the case, SHE would be the one who would have to go to court and seek an increase in support, if she is claiming that as a result of being unable to work, the needs of the child can not be met and you should be paying more. It would be at that time, that the Judge would decide and could inquire about her situation and if this is something which is a valid claim ( i.e. she is injured and cant work) or if it just an excuse to make you pay more. Child support is based upon the needs of the child/ren, so the Judge is certainly going to consider if the amount you pay is enough to meet those basic needs and if money that goes to certain "extra" things, shall not longer do so. As far as the issue with the age in which a minor can decide which parent they want to live with, SC does not have one. Normally, the court will want the child to be at least 12 years old but at 14, your son should be able to speak with the Judge and advise him/her if he wants to live with you or the mother. The Judge will certainly consider the wishes of the child but the Judge has the final say, based upon the best interest of the child. Moreover, if you were to obtain custody, the amount of child support which you pay, could be reduced as well, since you would be having more time with the child and a greater need/basis to provide for him.

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