Re: Deviation from support guidelines?

[Freedom]

> calculating the support based on the mother earning minimum wage. For
> the last 4 years she has only held minimum wage jobs. For many years
> prior to that she was a paralegal and earning substantially more than
> minimum wage. Is there any hope of getting a judge to impute a
> reasonable income for her?
Yes, read the laws in your state for deviation, argue accordingly, appeal if
neccessary.

> 2. My husband and I live in the DC metropolitan area and the cost of
> living is significantly higher here than it is in Dare County, NC
> (where the mother and child live). Is there any hope of getting a
> judge to adjust his salary to Dare County dollars for the calculation?
Usually, the law states, expenses are important, so yes.

>
> 3. The original motion to increase the support was filed in January
> 2003 but the case has been continued until November due to my
> husband's absence. Once we go to court, will the increase be
> retroactive to January?
Yes

> The first two items are the only two that I can think of that could
> justify deviating from the guidelines. If there is no hope of either
> is there any point to retaining an attorney?
Read the laws. In my experience, family matters are best argued by
yourself. It is simple a household budget you are talking about, lawyers I
doubt, ever use a budget. Make sure you have all your expenses into
evidence at the hearing (go to a hearing, don't waste your time at the first
level, where folks plug in the numbers and out comes some "magical" number
that kids "are entitled to". Also, rememeber, most guidelines built today
(actually years ago) DO NOT address the fact: "The once intact family NOW
has TWO OF EVERY BILL" Therefore, how can they possibly "keep up with the
jones"?


>
> TIA,
> Annie Kelly

[gini52]

"AnnieK" > wrote in message
om...
> After a 3 year review, the child support my husband pays is to be
> modified. They want to increase it by over 50%. He is currently in the
> army and in Baghdad so I am trying to deal with this myself and I have
> 3 questions.
===
(See comments below)
===
>
> 1. This is an IV-D (some sort of public assistance) case. They are
> calculating the support based on the mother earning minimum wage. For
> the last 4 years she has only held minimum wage jobs. For many years
> prior to that she was a paralegal and earning substantially more than
> minimum wage. Is there any hope of getting a judge to impute a
> reasonable income for her?
==
This depends on your jurisdiction. No one can predict this for you unless
they have
a good knowledge of the laws in your jurisdiction. Generally, when income is
imputed for the custodial
parent, they will not go back that far. Why is she on welfare and not
working? Whether higher income is imputed to her may be based on the reason
she has not been working.
(More Below)
==
>
> 2. My husband and I live in the DC metropolitan area and the cost of
> living is significantly higher here than it is in Dare County, NC
> (where the mother and child live). Is there any hope of getting a
> judge to adjust his salary to Dare County dollars for the calculation?
==
I have never known a court to do this--doesn't mean it isn't done. It may be
at the judge's discretion. Don't count on it, though.
(More)
==
>
> 3. The original motion to increase the support was filed in January
> 2003 but the case has been continued until November due to my
> husband's absence. Once we go to court, will the increase be
> retroactive to January?
==
Yes.
==
>
> The first two items are the only two that I can think of that could
> justify deviating from the guidelines. If there is no hope of either
> is there any point to retaining an attorney?
===
Unless there is some kind of variance
for military personnel, I can see no reason why you need an attorney at this
stage. If you were dealing with arguable arrears and a significant amount of
money, I would recommend an attorney--otherwise it can be handled without
that expense. Child support modifications are fairly cut and dried. The
numbers are plugged into the formula and the amount of support appears. Some
jurisdictions allow variances for subsequent families and some don't. Good
luck and best wishes. This must be a very strenuous time for you and your
husband. BTW, the retroactive support is usually reduced to a small
installment tacked on to the monthly payment so it will not likely be a lump
sum payout you will have to come up with.
===
===
>
> TIA,
> Annie Kelly

[PrchrdnS]

"Bob Whiteside" wrote:

>"AnnieK" > wrote in message
om...

>It doesn't mattter how much income they impute to the child's mother. If it
>is high or low your husband will still end up paying the same amount of CS.
>The CS guidelines and calculation process are loaded to take a fixed
>percentage from the NCP father.

Wrong.

There are three different types of child support models used in the US:
the Income Shares Model, Percentage of Income Model, and the Melson Formula
(which is a more complicated version of the Income Shares Model). See:
http://www.ncsl.org/programs/cyf/models.htm

North Carolina, when the OP stated the current child support action is from, is
a state that uses the Shared Incomes Model. However Washington DC has the
Percentage Model. IMHO it would be better for her to keep the case in NC, a
shared income state.

>> 2. My husband and I live in the DC metropolitan area and the cost of
>> living is significantly higher here than it is in Dare County, NC
>> (where the mother and child live). Is there any hope of getting a
>> judge to adjust his salary to Dare County dollars for the calculation?
>
>Not much. Normally the state CS guidelines where the child(ren) live takes
>precedence. You can try to show what the CS award would be if it were made
>in your state with the chidlren living there, but it might actually be
>higher than the other state.

The OP might want to go to this site: http://www.divorcehq.com/calculators.html
and use their child support calculator (covers all states) in order to get some
idea what she and her husband might be facing.

[dani]

AnnieK wrote:

<snip>

All good advice, from the above.

My two sense.

1. It doesn't hurt to argue any of the facts you stated above. The
judge's have and use discretion. If you can present enough of a good
reason for the judge to do it differently he can and possibly will. But,
make sure you present it right.

2. You might want to talk to someone at your husbands base. I do know
that certain states have passed and are considering legislation
affecting those in the military, regarding CS payments. Also, they may
be able to help by providing legal counsel at no or low cost considering
the circumstances. It doesn't hurt to ask.

~ Dani

[frazil]

Not an attoreny, but here is my opinion based on my experience.

AnnieK > wrote in message
om...
> After a 3 year review, the child support my husband pays is to be
> modified. They want to increase it by over 50%. He is currently in the
> army and in Baghdad so I am trying to deal with this myself and I have
> 3 questions.
>
> 1. This is an IV-D (some sort of public assistance) case. They are
> calculating the support based on the mother earning minimum wage. For
> the last 4 years she has only held minimum wage jobs. For many years
> prior to that she was a paralegal and earning substantially more than
> minimum wage. Is there any hope of getting a judge to impute a
> reasonable income for her?

Of course it is possible. But reasonable depends on circumstances. For
instances, why is she only earning minimum wages? Where was the case filed?
What are the differences in the cost of living between where she lives and
where he lives. For the same job, what is the difference in pay between
locations? Where was the case filed? All of these question may have a
bearing on the outcome of the case.

>
> 2. My husband and I live in the DC metropolitan area and the cost of
> living is significantly higher here than it is in Dare County, NC
> (where the mother and child live). Is there any hope of getting a
> judge to adjust his salary to Dare County dollars for the calculation?

If the cost of living is significantly lower in Dare County, I think the
best hope lies in getting the case heard in Dare County.

>
> 3. The original motion to increase the support was filed in January
> 2003 but the case has been continued until November due to my
> husband's absence. Once we go to court, will the increase be
> retroactive to January?

In all likelihood, yes. It isn't required, but it is legal. Unless the NCP
can set aside the difference between the current payment and the increased
payment, it is to his advantage to get the case heard in the proper venue as
soon as possible.

>
> The first two items are the only two that I can think of that could
> justify deviating from the guidelines. If there is no hope of either
> is there any point to retaining an attorney?

I think your best hope lies in getting Dare County to claim jurisdiction,
and showing that there is a significant difference between the cost of
living in Dare County and the DC metro area, and the the pay for similar
jobs is not different . But you will need hard numbers and proof of those
numbers. I think what you ask is a stretch, but you don't get what you
don't ask for! As for an attorney, my advise is get one if she has one.
Since it is a IV-D case she probably has one, it probably is the state that
is seeking the increase.



>
> TIA,
> Annie Kelly

[frazil]

PrchrdnS > wrote in message
...
> "Bob Whiteside" wrote:
>
> >"AnnieK" > wrote in message
> om...
>
> >It doesn't mattter how much income they impute to the child's mother. If
it
> >is high or low your husband will still end up paying the same amount of
CS.
> >The CS guidelines and calculation process are loaded to take a fixed
> >percentage from the NCP father.
>
> Wrong.

Under the income shares model it still is true. I live in an income shares
state, and my ex's income has practically no effect on the amount of CS, I
pay. The formulae may be different between models, but the end results are
virtually identical.

>
> There are three different types of child support models used in the US:
> the Income Shares Model, Percentage of Income Model, and the Melson
Formula
> (which is a more complicated version of the Income Shares Model). See:
> http://www.ncsl.org/programs/cyf/models.htm
>
> North Carolina, when the OP stated the current child support action is
from, is
> a state that uses the Shared Incomes Model. However Washington DC has the
> Percentage Model. IMHO it would be better for her to keep the case in NC,
a
> shared income state.

Except for the fact that regardless of the model used by a particular state,
the outcome for the NCP is almost the same,
dollar-wise, even though the formula is different. However, I agree that NC
is probably the better venue, because I think the success of showing
circumstances that warrant a deviation are better. The poster really should
run the numbers under Dare County guidelines and their county of residence
guidelines, to make an informed decision.

>
> >> 2. My husband and I live in the DC metropolitan area and the cost of
> >> living is significantly higher here than it is in Dare County, NC
> >> (where the mother and child live). Is there any hope of getting a
> >> judge to adjust his salary to Dare County dollars for the calculation?
> >
> >Not much. Normally the state CS guidelines where the child(ren) live
takes
> >precedence. You can try to show what the CS award would be if it were
made
> >in your state with the chidlren living there, but it might actually be
> >higher than the other state.

Again not true, precedence is established by original jurisdiction, under
the theory that the venue of original jurisdiction is more competent to
adjudicate the matter, and the full faith and credit clause of the
Constitution (You can't court shop in an attempt to find a sympathetic
court). You can argue this, but the nod goes to the court that has original
jurisdiction. IOW, to sucessfully change venues in the face of opposition,
requires an additional showing, such as hardship, lack of competence, etc.

>
> The OP might want to go to this site:
http://www.divorcehq.com/calculators.html
> and use their child support calculator (covers all states) in order to get
some
> idea what she and her husband might be facing.
>

[frazil]

Bob Whiteside > wrote in message
rthlink.net...
>
> "PrchrdnS" > wrote in message
> ...
> > "Bob Whiteside" wrote:
> >
> > >"AnnieK" > wrote in message
> > om...
> >
> > >It doesn't mattter how much income they impute to the child's mother.
If
> it
> > >is high or low your husband will still end up paying the same amount of
> CS.
> > >The CS guidelines and calculation process are loaded to take a fixed
> > >percentage from the NCP father.
> >
> > Wrong.
>
> Have you ever run some varying income numbers for a CP through the income
> shares model support calculators? For every $5,000 change in the CP's
> income, plus or minus, the NCP's share of the CS changes $5-18 per month.
> Sure there are minor fluctuations, but the NCP always pays essentially the
> same percentage of their income regardless of how much the CP earns.
>
> Here are some examples from my state for one child with standard
visitation:
>
> Father's income - $40,000
>
> Mother's income/CS paid by NCP
>
> Min wage/$450
> $20k/$445
> $25k/$436
> $30k/$418
> $35k/$413
> $40k/$408
>
> My point was it makes no sense to spend too much time worrying about how
the
> CP's income is treated since the outcome remains essentially the same for
> what the NCP pays.

Exactly, both the "percent of income model" and the "income shares model"
result in virtually the same outcome for the NCP.

[Virginia]

frazil wrote:

> PrchrdnS > wrote in message
> ...
>
>>"Bob Whiteside" wrote:
>>
>>
>>>"AnnieK" > wrote in message
om...
>>
>>>It doesn't mattter how much income they impute to the child's mother. If
>
> it
>
>>>is high or low your husband will still end up paying the same amount of
>
> CS.
>
>>>The CS guidelines and calculation process are loaded to take a fixed
>>>percentage from the NCP father.
>>
>>Wrong.


Today I was surfing the PA websites and read something in the DR section
of the laws regarding custody which states the mother's status of having
custody is her portion of the CS and the dad's absence leaves him
monetary support for his children as his only way to provide a
comperable amout of support. Give me a while to sort through the history
on my browser and I'll find the link for you.

[frazil]

There seems to be some confusion. My point is that under either the income
shares model or the percent of income model the CP income, all other things
being equal, makes no difference in the amount the NCP pays. Further, given
the same CP and NCP incomes the income shares model and the percent of
income model give the same dollar amount.


Virginia > wrote in message
...
>
>
> frazil wrote:
>
> > PrchrdnS > wrote in message
> > ...
> >
> >>"Bob Whiteside" wrote:
> >>
> >>
> >>>"AnnieK" > wrote in message
> om...
> >>
> >>>It doesn't mattter how much income they impute to the child's mother.
If
> >
> > it
> >
> >>>is high or low your husband will still end up paying the same amount of
> >
> > CS.
> >
> >>>The CS guidelines and calculation process are loaded to take a fixed
> >>>percentage from the NCP father.
> >>
> >>Wrong.
>
>
> Today I was surfing the PA websites and read something in the DR section
> of the laws regarding custody which states the mother's status of having
> custody is her portion of the CS and the dad's absence leaves him
> monetary support for his children as his only way to provide a
> comperable amout of support. Give me a while to sort through the history
> on my browser and I'll find the link for you.
>