Denied visitation, denied child support payments


#1

I have a question on Child Support payments when visitation has been denied.

Some background information…
My ex-spouse and I signed a separation agreement in 2001 and since then the agreement has been followed for the most part although quite often
my visitation at holidays has been ignored if the dates/circumstances have not suited my ex-spouse.
Being a reasonable person and not wanting to create feelings of animosity, for the sake of our daughter, I let it slide.
However, this past year (2010) my daughter has had anxiety issues and did not want to be away from her mom, so again putting my daughter’s feelings first
I did not insist on my visitation occurring every other weekend and every other holidays as is stipulated in the agreement.
After she went back to school my daughter’s anxiety diminished and so I expected to see her again, unfortunately that has not happened
a combination of her feeling busy and with my ex-spouse’s “couldn’t care less” feelings for me.
Tired of being bullied for many years I decided to put my foot down and demanded to see my daughter as I am entitled to do.
In the separation agreement I have a child support payment of $715/month which I have paid faithfully every single month since
(and even before) the agreement was made in 2001. The separation agreement says that it is court-ordered but we never went to court
over the child support payment, it was just agreed upon and signed in the agreement.
So is the child support payment “court ordered” or not?
For the past 2 months I have refused to pay the child support payment and will continue to do so until the visitation schedule is followed.
Obviously my ex-spouse and I disagree on the right and wrong of this, she claims I have to pay irregardless of whether I see my daughter
or not.

So I am wondering:

  1. Where I will stand if my ex-spouse decides to try and sue me for current/missed child support payments?
  2. Does she have to provide me with the visitation schedule set out in the agreement?
  3. Is one exclusive of the other?

In addition, in the original separation agreement in good faith I agreed to pay half the costs of college for my daughter, plus
half all uncovered medical expenses (which I have been paying), my daughter is nearly 15.
To be honest, I feel that my ex-spouse has not acted fairly or in good faith regarding our separation agreement and I would like
to change the original separation agreement. Can I do this?

I really do appreciate any advice you can offer me on this.

geezer392002


#2

The child support may be part of a court order if you incorporated your Separation Agreement into the divorce decree.

Child support is not related to visitation in the sense that on is contingent upon the other, you are bound to pay support and I recommend you do so. You will most certainly be found in breach (contempt) if she takes you to court. Your remedy regarding the visitation issue is a breach of contract action ( or motion for contempt if your agreement is incorporated.)

With respect to the college expenses, you are also bound to pay those and a court will enforce the Agreement as it is written. Absent duress at the time of signing(real physical threat ) Separation Agreements are almost never rescinded.


#3

Erin,

Thanks for your reply, I appreciate your advice.

From what I gather I am likely to be found at least in breach of contract or contempt of court
if the separation agreement was incorporated into the divorce decree. I don’t think it was
incorporated into the divorce decree so I am confused why it says the child support
is court ordered in the agreement.

I think I was far too reasonable when I signed the separation agreement, I should never have
trusted my ex-spouse to be a person of high morale. I think it is extremely unfair of her to deny
me visitation to my child, is there no way I can sue her to enforce the visitation?
Otherwise it makes a mockery of the separation agreement itself, it just means she can do what
she likes and I still have to pay the child support.
I think the law really is unfair to Fathers such as myself who try to do the right thing but end up
being taken advantage of.
Perhaps the law would treat me differently if I was one of those Fathers that doesn’t want to know
their children or refuse to pay any kind of child support?

Obviously I’m very frustrated and feel the law does not protect both parties in this dispute,
but Thanks again for your advice.

geezer392002


#4

You can take your ex back to court for breach of contract/contempt if she is not allowing the visitation to occur. Keep documentation of every attempt you make at seeing your child, and are being denied…and take her to court.


#5

Your remedy is to sue her for breach of the agreement on visitation.


#6

Erin,

Thanks again for your reply.
I wanted to ask for another piece of advice, if you don’t mind?

Today I received a Civil Summons from my ex-spouse.

The summons is asserting a Claim for Child Custody and Child Support.
In the summons, my ex-spouse is claiming reasons why she should get temporary and permanent
custody of my daughter.
All of the reasons are lies, pure and simple, and I can and will, if necessary, defend myself
vigorously against everything she claims.

The summons says I have to reply within 30 days with a written letter to my ex-spouse or her attorney.
She is also asking for the court to make me pay for the action of the summons.

She also wrote a hand written note saying that she “didn’t want it to come to this, let me know if you want to talk about this, maybe we can work this out between us”.

So my question is what would you recommend I do in response to the summons?
Is it advisable to have a lawyer respond to the summons?
Could she withdraw the summons (or does there have to be a response from me)?
I can refute everything she alleges, it is all lies but in anycase none of it could be substantiated and is
basically just her opinion.
I still think it might be wise for me to sue her for breach of separation agreement, otherwise even if we settle this amicably she would not have any real incentive to comply with the visitation schedule set out in the agreement. What do you think?

many Thanks,

geezer392002


#7

Erin,

One other question.

I believe I read in a different thread in this forum that making someone pay for a child’s college tuition/accomodation is unenforceable by a court, presumably because the child is no longer a minor at that point.
Is that true?
What if it is stated in a signed separation agreement, can they enforce the payments in that case?

Thanks,

geezer392002


#8

I recommend you see a lawyer next week to prepare an answer and counterclaim. You and your ex can still work towards an amicable settlement, but you need to ensure you file a proper response timely.
Now that she has filed for custody, you need to respond with a counterclaim. Given your history, it will be better to have support and custody outlined in a court order.
The college provisions of your order will remain enforceable.


#9

Thank you Erin.

Please give me the contact details of the right person to speak to in your Charlotte, NC office.

Also, can you give me a rough idea of the likely cost involved to respond to the summons?

Thanks again,

geezer392002


#10

I cannot quote fees on the forum. Please contact our client liaison by dialing the main number and selecting extension 100.


#11

Thanks Erin.
I will contact a lawyer this week, perhaps Rosen will help me.

My ex-spouse is representing herself, should that make it easier for me?

I will have the lawyer respond and deny the complaint.

Can I ask for the court to make her pay my costs if I win, she works part time and gets $20 per hour,
I mean if she is a low earner would it affect the court’s decision to make her pay?

In addition to denying the complaint, will I then have to (separately) sue for visitation?
Do you know how the court would enforce the visitation?


#12

Your ex’s decision to represent herself does not fundamentally change the case.
You may seek an award of attorney’ fees and costs if your breach suit is successful.

If she is found in breach the court will order her to follow the agreement and if she does not she can be held in contempt of the order, and may even serve jail time.


#13

Erin,

Further to the thread I started several months ago regarding child support/visitation.

You had mentioned that if the Separation Agreement was incorporated into the divorcee decree then
the child support agreements would be court ordered. To be honest I am not sure if it is or not.
We had a very quick divorce, it was just a little paperwork because we had been separated for
over a year, I think it was very inexpensive. Do you think it is likely that the Separation Agreement
would have been incorporated into the divorce decree?

The lawyer representing me has told me that a mediation has been set for next Tuesday,
he asked me to bring my 2010 tax return and 3 paystubs.
From this I am assuming that they want to recalculate the child support payments.
So here is my concern:
When the Separation Agreement was drawn up in 1998 my wife (now my ex obviously) and I were
both working, I earned about $57K and she earned about $35K, so the child support split was
around 60/40.
Since then we have both remarried, my ex has chosen to give up working (except for a part time
dog walking job), she relies on her husband’s wages which I estimate to be around $200K per year,
so she is doing very well.
I could not afford to stop working and so I continued, my current salary is $112K and my wife does not work.
My current child support payment is $715 per month, so I estimate the total child support is about $1200
per month. The fact of the matter is if I will be liable for the whole amount (because my ex is not working)
then I will not be able to meet my financial obligations to my current family. we have a 13 year old and
a 17 year old to support. The 14 year old has a learning disability and the 17 year old is off to college next year.
I really feel it would be unfair to expect me to pay the whole amount, especially considering the fact that
my ex is very well off financially now.
This issue is creating a lot of stress in my house, my wife has said she does not want to be "dragged down"
with my and I am not sure what the future will hold.
What would happen if I quit my job and had no income whatsoever? Presumably my ex and I would have to
split the child support payment 50/50? I know it is a drastic step but I feel it may be my only choice, I have
no idea how that decision would affect my family now.
Up until last December when I stopped paying the child support payments I never missed a payment
in 14 years. I am not a deadbeat dad but I do not think the rules concerning child support payments
in this state are even close to fair to the father.

If the mediation does not settle this matter then we have a court date on August 15th, how do you think it would go if
I had to go to court over this?

Also, I feel my lawyer has been very poor throughout this process, he never keeps me informed and is
very difficult to get hold of so I feel I am isolated with no good advice.
I am considering changing my lawyer even at this late stage and would be interested to speak to your company
if I do indeed decide to change lawyers.

Any advice you could offer would be most apprciated Erin.

Thanks again.


#14

When a person voluntarily suppresses their income in bad faith, the court can calculate child support based on the income they would be earning, rather than the income they are actually earning. This means if you were a lawyer and quit your job to work at McDonalds, you would pay child support based off of your former and presumably higher salary. This only applies in cases where someone has acted in bad faith. For example, if you used to be a manager in a company and is laid off and can only find a job making half your salary, as long as your income has not decreased in bad faith, child support will be based off of your new salary. What you are describing would be to quit your job in bad faith, and income would likely be imputed to you based on your prior salary.

You would generally show bad faith by proving that your spouse had the ability to earn more money, had a job where they were earning that salary, and left that position to avoid paying support. If your ex’s refusal to work is in bad faith the court may impute income to her which would reduce your child support obligation, but you must show that she is not working so that she can get more money from child support. The fact that her new spouse is high-income is irrelevant to child support calculations.

Likewise, the fact that you have additional children through this subsequent marriage cannot reduce your financial obligation to your prior child. The legislative intent here is that it is bad public policy to let people off of the hook financially for their prior children because they voluntarily later on had other children.


#15

Crystal,

Thank you for your reply.

So am I to understand that:

  1. Because I am the only earner I have to bear 100% of the child support payments.
  2. My ex-wife, who was fired from her job when we were married, does not have to pay anything
    and she keeps full custody and she can claim my daughter as a child credit on her tax form
    and the fact that she is wealthy through her husband is all irrelevant?
  3. The fact that I would not be able to support my own family based on being 100% responsible
    for the child support payments is also irrelevant?
  4. The court could assess me a child support bill of say $1200 per month even though I am now
    either working at McDonalds or not working at all?
    You cannot get blood from a stone, either an individual can afford it or he cannot, how can
    the court ask someone to pay some amount that he genuinely cannot pay?
    Is the intention to fill our jails with family men who have fallen foul of this legal system?

Please forgive my cynicism but this is entirely unfair and slighted heavily toward my ex.
Is there an logic to any of this?


#16

Yes, her husband’s income is irrelevant to child support calculations in NC, as is your wife’s. If you feel that a modification is necessary, you can always file for one if it has been 3 years since the entry of the last Order, and there is a 15% change in the amount of support based on new income numbers. This would constitute a substantial change in circumstances which would merit a modification. If you suppress your income in bad faith, by quitting your job to avoid paying child support or to pay a reduced amount, the court will not reduce your obligation and will keep it based off of your old income. Otherwise, a lot of non-custodial parents would do this and children wouldn’t receive the support they are entitled to, and the state would bear a higher burden. That is why the state legislature drafted laws to prevent such occurences.


#17

Crystal,

If you would be so kind I really need some advice regarding this matter before my court date on Monday 15th.

I have been very unsatisfied with my attorney and have fired him due to misrepresentation and other issues
including his lack of communication throughout thus matter.

Today I received an email from my attorney outlining a proposal from my ex-wife and he is demanding to see me tomorrow morning to prepare a financial affidavit. He asked me to bring my 2010 tax return and last 3 pay stubs.

The proposal is:

  1. The child support is recalculated on Guidline Worksheet A.

  2. I pay off my child support arrears with a $2000 immediate payment and then $1000 per month until I have
    paid off what i owe which is $6400.

  3. Uninsured medical expenses for my daughter are split based on the income shares model prospectively.

  4. for me to pay the current unpaid medical bills totalling $1800 within 30 days.

  5. Primary and Legal custody to my ex-wife with visitation by mutual agreement between us.

  6. Each to pay own attorney fees.

  7. College fees to remain as per original separation agreement.

The original separation agreement set out the following:

  1. Child support payment of $715 per month based on a 60/40 split where I paid the 60% which was $715 per month.
  2. Uninsured medical expenses to be split equally between her and I.
  3. Primary custody to my ex-wife with visitation of alternate weekends where my daughter is with me plus liberal contact.
  4. College fees where we split the expenses for a 4 year degree course.

My question is what do you think she is likely to be awarded by the court?

I would like to propose that all the provisions in the original separation agreement remain as is,
where the child support remains at $715 (for me), uninsured medical bills are shared between my ex-wife and I.
Visitation is set out as before. College expenses set out as before (no change).

In addition, I would pay off the $6400 outstanding child support immediately.
Also upon receipt of all paperwork pertaining to last years uninsured medical expenses and concurrence that
bills are correct, I would pay my share immediately.

Please let me know if you think my proposal is reasonable and what the court might consider to be fair.

Many thanks once again, I do appreciate your support at this difficult time.

Andrew


#18

I think both could be acceptable to the court. I believe both are reasonable and fair, but I cannot say what a judge may or may not decide in any particular case.


#19

Erin,

Thank you for your advice.
I filed a motion for continuance after I released my attorney but the
judge denied the continuance. This meant that I had to represent
myself at the hearing this week. A temporary child support order was
made. I was not able to prepare a financial affidavit in advance
of the hearing so the order only took into account a few basic
details…respective salaries etc.
I believe that if I produce an affidavit the child support provisions
would be more accurate. So my question is, will I be allowed to
produce an affidavit for the permanent child support order?
How soon will the permanent occur and will it be in court like the
temporary was?
One other thing, during the hearing my “income” from a rental property
was taken into account for the Schedule A Sheet. After paying
my mortgage payments I do not make any net profit on the rental
so is it appropriate for the rental income to be considered on
the Schedule A sheet? Also school costs were taken into account
but the choice of school was not mine, do I still have to pay
a share of those costs?
I understand that even though I am the only earner in my family
and support 2 step-children and my spouse that the 2 children
do not count in the calculation? I have not adopted them.

I will most definitely be retaining a new attorney and hopefully
one that will honestly represent my interests unlike the previous
attorney.
As always your advice is of great help and I really appreciate you
taking the time to help me.

Sincerely,

Andrew


#20

Financial affidavits are not considered in CS, only income, health ins. costs and day care. The permanent hearing will occur after permanent custody is heard, and CS will likely be the same at that time if the parties incomes are the same at that time. Income from any source is considered, however if you are not receiving any positive cashflow from your rental property, then I do not see how that can be added in as income to you.

In some cases the court will factor private school tuition into child support calculation in cases where the court finds that the private school education is in the best interest of the child. In a case where the child has been attending the school for a number of years, it would be an uphill battle for you to convince the court that the child’s attendance at the school is not in her best interests.

Your stepchildren are not party of the equation, though your other obligations may be relevant if you can show that you will not be able to provide for the child who is the subject of the current support action when she is with you given your current obligations and the cost of private school. Private school can be included in the child support calculation as an extraordinary expense if the parents agree to its inclusion, or if the court finds that the private school is necessary to serve the child’s best interests.