Divorce and child support


#1

My husband and his ex-wife’s divorce was finalized in July 2007 and their separation agreement was made part of the divorce decree. They have 2 children together and at the time she did not work. Due to the circumstances, my husband agreed to pay $1,000 a month to give her time to get on her feet and get settled. This included the car payment and car insurance (which were in his name) that were listed as part of child support and the difference was given in the form of a check. The car will be paid off in the next few months and we have surpassed the 3 year mark, but she is still unemployed and has no intention of acquiring a job, stating that since he agreed for her to be a stay at home mom when they were together years ago, she still gets to be. When the car is paid off, she wants him to write her a check for $1,000 a month. She is unemployed and has been for almost 7 years, their youngest child will be 4 next month and they have shared custody with equal time spent with the kids. We did the worksheet online and it is half of what he has been paying so he has definitely shown good faith on his part.

Questions: is she correct that bc he agreed for her to be a stay at home mom she gets to always do that?
will the courts factor in her potential earnings?
is the divorce decree considered a court order that the court will not change?
will they factor in the fact that he has another child now as well?
will his good faith then be a factor or actually hurt him?
what are his chances at a good outcome?

Thanks, SAM


#2

No, each parent has a duty to support their children, and if all of hers are over the age of 3 she can be expected to work. Earning capacity will be considered, and if the court finds that the mother is depressing her income in bad faith to increase her support payments, income can be imputed to her in the amount she is capable of earning.
Child support, even in an order, is modifiable after the passage of 3 years and a 15% change in the amount of support. His other child will also be a factor that works in his favor, in that one half the basic child support obligation will be deducted from his income for purposes of the calculation.


#3

thank you for your quick reply. the only other concern I have is that since the child support now is listed in the divorce decree, is that considered a court order? I am asking bc the lawyer my husband consulted awhile back advised him that it isn’t a court order so once the car is paid off he can pay her whatever amount he wants to and if she wants more then it will be up to her to take him to court. This did not seem accurate to me since I would think the agreement in the divorce decree would be a binding document and need to be modified through the court.

My husband’s gets overtime on occasion so is the OT factored into the income from his paystub and is it true the courts take the last 3 months of paystubs and take an average for monthly income when it fluctuates? We are just trying to get an accurate amount for the worksheet when he presents it to her.

thanks again for such a quick response…


#4

Yes, the support is now contained in a court order. OT is factored into income, usually by taking an average.