My ex and I mediated a settlement in Feb. 2009. It contained a provision that I would pay an additional $600 in CS as long as my daughter was at a specific private school. Including the extra CS, my total support was 51% of my monthly net salary. The clause also indicated that my salary was a specific amount. At the time I was represented by counsel and she was with her 3rd atty. After the agreement, my atty drafted the agreement tried for no fewer than six time to get my ex to finalize the wording and file the memorandum. In December 2010 I tried sending it directly to my ex several times. Its not that she said “no” to the suggested wording. She did not reply.
In April of this year I endured a 14% pay cut. I reached out to my ex who again said nothing. With the pay cut, the new total support equaled 60% of my monthly net. I stopped paying the extra CS and recalculated the state recommended CS. I revised my CS to reflect this.
Finally in May of 2011 my ex and her 4th atty contacted me. With the help of the mediator/arbitrator we reached an agreement. It was filed in November. I immediately went to the court house and filed for CS modification. My case will be heard in January. Is it possible for the CS modification to be retroactive to April given that my ex was so uncooperative and left me no legal options at the time?
Until a CS modification is heard and granted by a judge, the non-custodial parent must continue to pay the current amount of CS because you are still liable for that amount. You can be held responsible for any arrears that accrue therein. If she would not respond to your request for a voluntary recalculation of CS, your remedy is to file for a modification yourself as soon as possible. You are responsibly for the current CS amount in the meantime. You will not get any “back” CS that you may have overpaid in retrospect. That is why it’s important to file for a modification as soon as it’s possible to receive one. If you’ve just reached a mediated agreement and filed it last month, and if you have a modification hearing set for next month, you will have to convince a judge that your current conditions are substantially different (substantial change in circumstances standard) than they were when you agreed to the mediated amount, just two months prior.
I agree with you. I needed to file for a modification when I received my salary reduction. However there was nothing to modify. I could not file for modification from the court because my ex refuse to file the memorandum. Thanks for your guidance.