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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Family Law
Satisfied Customers: 30168
Experience:  Attorney with experience in family law.
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Hello, I am currently seeking divorce from my husband of 6yrs.

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Hello, I am currently seeking divorce from my husband of 6yrs. We have 2 children ages 9 and 7. Due to financial issues, there are no available assests to obtain legal services. I have begun the preliminary paperwork to file myself (he is aware), but I do have concerns on exactly what my rights are and what he can and can't do. For example, although he is currently trying to "keep" our current residence ( I plan on moving still w/in the state and do not wish to keep the house), he (we) have not made the mortgage payments since October. He is aware he will be paying child support, so he no longer wants to pay for my car. I am a Realtor and have no pending transactions which equals no current income. Can he do this? And how would I project what his child support payments would be being he has 2 jobs in which both salaries combined equal 48K and one offers the ability to make an additional 30-40K in commissions?

My name is XXXXX XXXXX I'd be happy to answer your questions today. I'm sorry to hear about your situation.

If you have custody of the children, you are entitled to child support. This calculator can help you figure out how much a judge might order him to pay you. If a substantial portion of his income is commissions, you can ask the judge to estimate support based on prior tax returns showing annual income, including those commissions.

Typically, in a divorce, the spouse that takes a car also accepts the payments on the vehicle. That's very common, just as the spouse that takes a house typically also gets the payments on the house. Each spouse is entitled to half of any equity in the house, and half of any other marital assets - which could include the equity in the car. Any time that you're asking the judge to order a spouse to give you money each month, what you're really asking for is spousal support. A judge is far less likely to say "Pay the car payment each month" than to say "Pay $X/month for Y months." It is then up to the spouse receiving support to decide how to use the money.

A judge has a lot of discretion when awarding support. It's typically based on need. If you have 0 income, the judge will consider that. The main problem that you'll face is that spousal support is typically limited to long term marriages - at least 10 years. Where your marriage has been shorter than that, you have to be prepared to argue as to why he should be ordered to pay, anyway. If you were living together before the marriage, that might be an argument that could help. The rule of thumb tends to be that support is for approximately half the length of the marriage.

Please rate my service positively before signing out, as this is the only way that I get credit for the time I spend helping you. I hope that you are 100% satisfied - otherwise, please reply so we can continue the conversation. Good luck.
Customer: replied 4 years ago.

thank you for your response. I realize I should have been more clear about the car...we still reside in the same home, and I had agreed that once I found employment ( I am awaiting budget approval for a full time job), and have moved myself and the kids out, I would then take on the payments. But since he is bringing in income and I am living off my last commission check, it seems more fair that he continue making the payments. As far as his projected commissions, he has only been working the sales job for a little over a month. He is told that the minimum he will make is 60K (that includes his base). So would I be able to request a judge factor that into the equation or would I have to wait till next year when he files taxes and go back to court?

You can ask the judge to consider the projected commissions. He will use whatever information is available to make a determination. The problem is, where the commissions are so uncertain, it's possible that judge would order support based on the base salary and the couple of months information available. You could then ask to modify the payments once he's been working the job for at least six months.

I understand why it would be fair for him to help with the car payments. However, usually, the judge will give the payments to the person who gets to keep the vehicle. If your husband agrees to pay, that's different - he's free to agree to something other than what would usually be ordered. The spouses are free to enter their own agreements, and a judge will usually enforce it.
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