Recalculate Child Support


#1

She could possibly get an increase of amount based on his previous tax returns but I do not believe that an increase can be based on an temporary increase that occured this year…it will not show up on his income yet.

His attorney will need to let the court know that she is voluntarily unemployed and providing that the child is school age, the court can use her previous earnings to compute a salary for him. It was probably never put into the calculations because she did not put it into them. If he signed an agreement for child support and did not argue the point at that time, then there is little that can be done.

I do not know for certain about the adoption and SS but if this were me, I would contact SS and find out about this. This sounds like fraud. If she is receiving money from SS then it should be included as income for her. This may be the only amount used unless, as I said previously, the court takes into account her earning potential.

The child support would be a separate matter to the courts from the divorce and any settlement or agreement issues.


#2

He doesn’t have a lawyer.

The child is 17 but only going to be a junior in high school this year because her mother held her back a year (to make the father pay another year of child support.) Mother is bi-polar. When the calculation was originally done they went to the court and someone there helped them. For some reason when she said she didn’t work they didn’t challenge it and my husband didn’t know to question it. He did sign it voluntarily because he trusted the person running the calculations.

So if the child support hearing is separate from the property hearing (she has a lawyer for the property hearing) does my husband send discovery requests directly to her just for the child support hearing? He sent her lawyer requests for the property hearing but she filed the child support document after they were already sent.

Thank you.

CDD


#3

Unless the attorney has indicated directly to you that he does not represent her for child support then you should send the discovery requests to him.

If the income was a one time increase and you can prove it is not likely to happen again in the future then child support probably will not be increased, however if his income has increased 15% overall from the last time child support was modified then it may be modified.

Adoption by a step-parent does not affect the receipt of social security survivor benefits.

P.S. Please feel free to bring up this or any other topic on our live call-in show every Wednesday at 11:00 a.m. EST. Visit radio.rosen.com/live for details

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#4

Unless the attorney has indicated directly to you that he does not represent her for child support then you should send the discovery requests to him.

If the income was a one time increase and you can prove it is not likely to happen again in the future then child support probably will not be increased, however if his income has increased 15% overall from the last time child support was modified then it may be modified.

Adoption by a step-parent does not affect the receipt of social security survivor benefits.

P.S. Please feel free to bring up this or any other topic on our live call-in show every Wednesday at 11:00 a.m. EST. Visit radio.rosen.com/live for details

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#5

If his income did NOT increase 15% from 2005 to now will the Judge modify the child support? He has received cost of living increases but I don’t think that adds up to 15%. Do you just produce pay stubs to the Judge to show the income hasn’t increased 15%? Does he need to file any paper work with the Court or does he just show up for this hearing? In addition, I thought I read that child support can only be modified every three years. Is that true also?

She also receives SS from her deceased 2nd husband and SS for the minor child. This is approx $1,600+ per month. Can this amount be added AND include “imputed wages”? (I have her old pay stubs when she was working 40 hours a week before they split.) I read the guidelines but they aren’t very clear.

Furthermore, he didn’t know in 2005 when the split that because she is VOLUNTARILY underemployed (so she can get more child support) that he could imput her wages. When I ran a calculation with her pay stubs from 2004 and his income (plus the fact that he pays all the insurance premiums that he didn’t add in), he has actually been “overpaying” child support by almost double this entire time. I don’t suppose he can get credit for that? He didn’t have a lawyer but someone at CS or the court helped him fill out the paperwork.

Thank you.

CDD


#6

If his income did NOT increase 15% from 2005 to now will the Judge modify the child support? He has received cost of living increases but I don’t think that adds up to 15%. Do you just produce pay stubs to the Judge to show the income hasn’t increased 15%? Does he need to file any paper work with the Court or does he just show up for this hearing? In addition, I thought I read that child support can only be modified every three years. Is that true also?

She also receives SS from her deceased 2nd husband and SS for the minor child. This is approx $1,600+ per month. Can this amount be added AND include “imputed wages”? (I have her old pay stubs when she was working 40 hours a week before they split.) I read the guidelines but they aren’t very clear.

Furthermore, he didn’t know in 2005 when the split that because she is VOLUNTARILY underemployed (so she can get more child support) that he could imput her wages. When I ran a calculation with her pay stubs from 2004 and his income (plus the fact that he pays all the insurance premiums that he didn’t add in), he has actually been “overpaying” child support by almost double this entire time. I don’t suppose he can get credit for that? He didn’t have a lawyer but someone at CS or the court helped him fill out the paperwork.

Thank you.

CDD


#7

They may modify support even if there has not been a 15% change in income if they determine that other factors have changed (custodial schedule, cost of daycare, health care expenses).

Income will only be imputed if you can prove that she is suppressing her income in bad faith, however if all the children are over three and she is not working, she will be imputed minimum wage.

The social security income can be considered in the calculation.

You cannot modify child support retroactively.

P.S. Please feel free to bring up this or any other topic on our live call-in show every Wednesday at 11:00 a.m. EST. Visit radio.rosen.com for details

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Sutton Station
5826 Fayetteville Rd. Suite 205
Durham, NC 27713
Phone: (919) 321-0780

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#8

The overtime from the deployment was a one time thing and probably will never happen again.

Nothing changed. There is one daughter (he adopted her biological daughter.) She is 17 and turns 18 in April 2009 but doesn’t graduate until next year 2010.(Her derranged mother held her back a year in school so she could squeeze another year of child support from my husband - she is a bi-polar.) My husband deployed for 4 months and she knows when they are deployed they work a bunch of overtime and she wants that money because she is greedy. (Mind you the extra money he used to begin paying off the over $100,000 in credit card debt she stuck him with when she left.) It isn’t enough that he has paid and continues to pay over and above for everything for the daughter she wants more!

When they split in 2005, she was working full time making $45,000 a year as a nurse. Then she figured out that if she quit her job, she could get more child support from my husband (she knew he wouldn’t hire a lawyer that would tell him that they could use those wages for her.) Anyway, she is also getting SS payments for her and the daughter of $1300 a month and another $1,100 a month in a VA benefit (these are a result of her deceased 2nd husband.) I don’t know anything about SS or VA benefits and if they decrease if you are working full time, do you know? What all can be included as her wages so we can recalculate. Thank you.

CDD


#9

Is the VA benefit for her or for the child?

P.S. Please feel free to bring up this or any other topic on our live call-in show every Wednesday at 11:00 a.m. EST. Visit radio.rosen.com for details

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Sutton Station
5826 Fayetteville Rd. Suite 205
Durham, NC 27713
Phone: (919) 321-0780

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#10

She gets $650 for the child and $650 for herself (SS benefits) and we assume the VA benefit is for her and the daughter but don’t know for sure (we just saw the amount on a bank statement.) Is there a way to find out who the payment is for?) Shouldn’t all this money be considered income anyway? Also, if the income she is receiving from the government is not included why would my husband’s VA retirement be included as part of his income? (Half of his meager retirement pay is disability pay. I didn’t think disability was suppose to be included but it was last time.) We just need to know what to include and what cannot be included so we can calculate the amount correctly this time. Your help is much appreciated. Thank you.

CDD


#11

The money she receives for herself will be considered income. The money she receives for child support will be used to offset your child support obligation.

P.S. Please feel free to bring up this or any other topic on our live call-in show every Wednesday at 11:00 a.m. EST. Visit radio.rosen.com for details

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Sutton Station
5826 Fayetteville Rd. Suite 205
Durham, NC 27713
Phone: (919) 321-0780

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#12

Ok, just so I understand, when you said the money she receives for the child will off set my husband’s child support calculation, does this mean the amount will go up or down?

CDD


#13

It should reduce the obligation if his rate of pay has remained constant.

Erin E. Clarey
Attorney with Rosen Law Firm

Raleigh Office
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 943.0044

Sutton Station
5826 Fayetteville Rd. Suite 205
Durham, NC 27713
Phone: (919) 321-0780

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#14

My husband’s ex is taking him back to court to recalculate child support because she knows he deployed for a few months and had a temporary increase in pay while he was gone but now that he is back his income is back to what it was before he left. This was a one time thing. Can she get more child support based on that? Also, she isn’t working on purpose (voluntarily un-employed - she is a nurse and when she was working was making $45000 a year.) This was never imputed into their calculations for some reason. What does he need to do to have the judge include an amount for her? She hasn’t worked for over 5 years now. Also, this “child” is her biological child and my husband had adopted her because her biological dad had died. It is my understanding that once the child is adopted that the mother cannot collect social security on that child anymore. Is this true? She has never told SS about the adoption and still continues to collect the money using the child’s former last name. If she still can collect, can this money be included in the calculations? The mother also receives SS from her dead husband. Can this be used too? One final question, his ex hired an attorney to reopen the old divorce case because she is claiming he didn’t pay her the money he owed her from the settlement agr. and now she filed this child support hearing request (same case no.) on her own, not through her attorney. Can she do that when the case itself is before the judge on a separate matter? (Scheduled for trial in Sept.) Shouldn’t this all be consolidated and dealt with at the same time? Thank you for your assistance.

CDD


#15

You mentioned you cannot recalculate child support retroactively. Does that mean since he didn’t know she was lying about her income until now and has been overpaying child support by $350 a month for the last 3 1/2 years that he cannot go back to court and open up a child support case claiming this fraud and lying by her and recoop the money she basically stole based on her lies?


#16

You cannot modify support retroactively, but that does not mean you may not pursue a civil action for the return of overpaid funds.


#17

How does one go about pursuing a civil action for overpayment of child support?


#18

File an action alleging that the overpayment was procured on the fraud you allege.


#19

My husband wants to pursue a civil action against his exwife for lying (purposely under reporting her income) to get more child support from him. Have you filed a suit of this type before? What are the chances of recovering the over payment of child support?


#20

He should file a motion in the cause to establish the proper amount of support and to receive credit or reimbursement for monies overpaid.