oops…agreement was done in May 06 not 07 [:D]
I do not believe that your ex could get an increase using the amount on her paystub considering that it is known that tips are included with her salary. I would think that if she did manage to get this before a judge the judge would question why she has not reported tips. The judge may also question why she is making less than she was a year ago at the same job…
Don’t most wait staff make less than minimum wage and are expected to make up the difference with tips? Wouldn’t that be illegal to try to use that amount without including any tips?
I could be wrong but I believe that it’s a child support order. Child support can be modified every 3 years with a 15% change of income or a substancial change in lifestyle. I think that your date would be the date the child support was agreed on. May 06.
I suggest that you wait until something happens. If she does attempt to file for more then you can always subpenoa her bank records and employer for income verification.
From my understanding, you have to wait three years before you can modify the child support figure UNLESS there is a 10-15% (considered substantial by the court) change in income.
As far as the agreement you and your wife made, I’m not sure entirely the details, but I have been reading A LOT of NC Supreme Court cases and rulings. There’s also a NC General Statue about contracts/separation agreements between husband and wife. I’m not sure exactly what you signed or how it held up in court, but I am in the same situation with my dead beat husband. We signed a “Property Settlement Agreement” which in NO WAY states anything about we ARE separated at the time, merely sets guidlines for if we do decide to separate. According to the statutes, this agreement can be upheld if it “does not go against public policy.” I’d have to understand more of what’s happening. Good luck. I’m in a horrible situation myself and trying to figure out this legal stuff on my own. =(
Rereading your post, I think if your separation agreement was included in your divorce decree, it is upheld. But at three years, you can request to modify - or if there is a 10-15% change in income. And I believe the burden of proof would be on your wife if she is the one filing. I’m pretty sure of it. Your willingness - HOPEFULLY DOCUMENTED - to voluntarily increase the amount will certainly show good faith on your part I would hope. Just hang in there and again - wait and see what happens. It’s all on her shoulders. not yours until she files to modify. Could just be threats for the moment - especially if you’ve already offered on your own to increase by 100.00/mo. And I think after three years, you still have to REQUEST a hearing on modification, but not sure.
Again, good luck.
Definitely read the NC General Statues
No, but the amount of support that you agreed to in your Separation Agreement will be considered by the court and will evidence of the reasonable needs of the children.
If she can prove it is not sufficient to meet the needs of the children or that their needs have changed substantially, then she can petition to change the child support amount.
See the answer to your previous questions.
If you believe she is suppressing income you could subpoena her bank records, credit card statements to prove she is spending beyond her stated income.
Helena M. Nevicosi
Attorney with Rosen Law Firm
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Charlotte, NC 28262
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My ex and I separated in Jan 06 and our divorce was final in Feb 07. We agreed to a child support amount in a separation agreement done in May 07 and incorporated into the absolute divorce. My ex now wants more child support than what we agreed upon in the separation agreement. Ex is a bartender/waitress and makes most of her income in unreported tips, so we originally agreed upon an dollar figure based on what she was actually getting. Now she wants to refigure the amount based on what her check stub says she makes. My questions are:
- Does the incorporated agreement make the agreed upon amount a “child support order”?
- Can she dispute the amount and have it raised even though it has not been 3 years since the agreement was incorporated making it a court order?
- If she must wait the 3 years, which date is the target date? Jan 06, May 06, or Feb 07?
- If she does take me to court to raise the amount, how would I go about arguing that she makes more than she actually reports (tips)? Would I be stand a chance?
Sorry this is so long and has so many questions in it but I have been reading posts on here for over a year and have never seen any answers to questions like this. I’m not trying to avoid paying, I even agreed to a voluntary $100 increase. I just don’t want to be unable to pay expenses myself. Thanks in advance!