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S. Kincaid
S. Kincaid, Family Law Attorney
Category: Family Law
Satisfied Customers: 2512
Experience:  I have practiced family law since 1996, focusing on child custody and domestic violence
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Customer Question

Hi. I have a family law question. I am currently looking to modify support. In my MSA (finalized 2 years ago), child support and spousal support were calculated using an 80/20 custody split. I am self-represented and my ex has a lawyer. I am employed and receive a W-2. At the last minute before getting the MSA finalized, I was seeking additional time with my children and the MSA was modified stating the custody split. It is closer to 65/35, but the support wasn't adjusted at the time. Also at the time I had some outside work that supplemented my income (which was included in the support calculation.) Lastly, I agreed not to modify the support for 3 years. About a year ago I my outside income. About 6 months ago I got a promotion, but that didn't completely make up the shortfall. I was advised that child support is always modifiable and the "non-modifiable" clause is more to discourage me from attempting to modify support than it is legally binding. My support numbers are roughly: $3500/mo child & $1800/mo spousal. When I run the numbers using the California guideline (I'm in Orange County) for support and using a 73/27 split, I should be paying closer to $3000/mo child & $1000/mo spousal. I am planning to use: Armendariz, Supra, 24 Cal 4th at p.99, 99 Cal. Rptr. 2D 745, 6 P.3d 669; Gavron, 203 Cal App 3rd 705, 710; and Glasser, 181 Cal App 3rd 149 - Cal:Court of Appeal, 2nd Appellate Dist. 5th Div 1986 to argue that I have the right to see modification to a "non-modifiable" MSA and that the court has the authority to modify a "non-modifiable" MSA. My question is: should I ask for a modification to both child and spousal support together; should I ask for one; or should I ask for both at separate times? Also, is there any other case law that I should use to support my request for order? Thanks. I hope I've provided enough background context.
Submitted: 2 months ago.
Category: Family Law
Expert:  S. Kincaid replied 2 months ago.

Well, it looks like you've found the case law to support your request. Or are you seeking case law that makes a different point?

With regard to whether you should do one or both at the same time, my gut is to say that you should do both at the same time. But that would really depend on the language of the order, particularly with respect to spousal support. Does the order state what factors were considered to come to the amount specified?

Customer: replied 2 months ago.
Hi, thanks for the response. One of the last minute changes to the MSA reads: "Respondent agrees not to modify child or spousal support for a period of 3 years."As far as the factors that were considered, they aren't specifically specified in the MSA, but I do have the original dissomaster which shows the incomes, deductions and custody split used to come up with the $3500 & $1800 support.How much of my current situation should I include in my declaration? By that I mean: I'm struggling to make ends meet, haven't been able to take any vacations with my kids, can't even afford gifts for them while their mom is throwing parties for birthdays, taking them on trips, etc. My suspicion is that her lifestyle is being supplemented by her wealthy parents, which I don't really care about, but my standard of living is no where near what it was before my divorce and the kids are experiencing a very lopsided lifestyle when they're with me. I don't want to seem like I'm whining or crying that "it's not fair", but at the same time I would like to illustrate the fact the custody split and my financial situation make support overly burdensome. Any advice would be appreciated. Thanks!
Expert:  S. Kincaid replied 2 months ago.

The focus should be on the unexpected change of circumstances that justifies a modification despite the provision. If the situation was predictable, it would not be a realistic basis to get a downward modification.