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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 11-04-2011, 10:23 AM
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Default Child support motion to change due to lower income & joint custody being enforced

Hello,

I am new to this and seeking some advice for someone else. I'll do this in point form so it's easier.

CHILD SUPPORT ISSUES

1) Separation papers were drafted with a lawyer privately and child support was established at $1,000 month for 2 children to start effective the sale of the matrimonial home - Oct 1, 2010.

2) Separation Papers signed June 30, 2011, whereby the Husband was already unemployed - Termination letter received February 15, 2011.

3) Separation Papers accounted for the 2008, 2009, 2010 income at $70,200 and didn't take into account the husband was unemployed.

4) Husband works ad-hoc jobs here and there and lands a full-time job in August. Total 2010 income is $36,000 for 2010 and in 2011 total income will the full-time job at $43,000. Starts paying $1,000 CS to wife as of October 2011.

5) Based on CS tables, total CS should be $661 for the $43,000 salary, seeks to have current $1,000 CS decreased.

6) Confirmation of Assignment faxed and waiting on. Form 15A, Form15 completed, Form13 Fully completed with a 1 inch binder showing all assessments, reassessments, all supporting documentation to account for 2011 income at $36,000 and 2012 income from current employer (pay stub, offering letter), all assets, liabilities documented and supported, all record of job searches from Termination date to landing new position documented.

QUESTION:
Once Separation is submitted as a Court Document and then we submit Motion to change, will child support go down? And does he keep paying the $1,000 until it is approved by the court or if it goes to court? Or is he stuck to paying $1,000?

JOINT CUSTODY

1) Separation papers signed indicated 50/50 Joint Custody with alternating weekends. Nowhere does it say he is a danger to them or is the vistation supervised. [By the way, it was ONLY the wife's lawyer that drafted the separation agreement, and on the back page, it states the "separation agreement is acting in the best interest of (wife's name). Husband signed without legal counsel. Gave 100% of house to her and everything in it.]

2) Also indicates they will take into account the children's intentions and wishes whether they want to spend more or less time with the father

3) He hasn't spent weekends with the children since July 2011 as the wife keeps saying "It's up to the girls". He can't talk to them as when he calls the house, no one answers or the wife answers and says the girls don't want to talk to him.

QUESTION:
He has requested Police Enforced visitation with his children on his paperwork and completed an affidavit with supported documentation of every single phone call and text he sent to his ex-wife asking to see the kids. What else does he need to do to help his case?

Any feedback appreciated.

P.
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Old 11-04-2011, 10:25 AM
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Sorry I made an error. Child Support starts October 2011 (point 1)
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Old 11-04-2011, 10:32 AM
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I must have been typing too fast, another error:

Husband works ad-hoc jobs here and there and lands a full-time job in August. Total 2011 income is $36,000 and in 2012 total income will the full-time job at $43,000. Starts paying $1,000 CS to wife as of October 2011.
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Old 11-04-2011, 10:33 AM
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Quote:
Once Separation is submitted as a Court Document and then we submit Motion to change, will child support go down? And does he keep paying the $1,000 until it is approved by the court or if it goes to court? Or is he stuck to paying $1,000?
Answer: Depends. He may be able to pay based on his new salary IF she agrees to that. Otherwise she can simply take the court order to FRO and they will enforce the $1000. (Did the SA contain any method of recalculating CS each year? If it does, it may simply be easier to absorb the costs and follow the order as written). If not, then get it done.

Quote:
QUESTION:
He has requested Police Enforced visitation with his children on his paperwork and completed an affidavit with supported documentation of every single phone call and text he sent to his ex-wife asking to see the kids. What else does he need to do to help his case?
He should be expressing to her "in writing" that he will be exercising his parenting time as per the court order and will be arriving to pick up the girls on X date. Then show up. If the children are not provided at that time, then he goes to the closest store, buys a pack of gum and gets a receipt. (to show date/time and location). While there, he sends her a text/email indicating he stopped by at the indicated time and the children were not there, and that he will be back in X mins, please have them ready.

Then go back, wait 15 mins. Then leave. Send her an email indicating her violation of the order, and request she provide some alternative for makeup time. If she still doesn't respond, you then send an R3 letter for same.

Rinse and repeat. When you go to court, you ask for custody to be changed, or barring that, that the access times be clarified in the order, given her refusal to encourage the children's relationship with their father.

Is he keeping in touch with their school? Meeting the teachers? Attending their extra curricular activities?
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Old 11-04-2011, 10:38 AM
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Thank you for response. As per your question: Did the SA contain any method of recalculating CS each year?

This is what is EXACTLY in the document: (Husband) and (wife) will conduct a yearly review of the childcare arrangement in order to determine if circumstances necessitate a change in the child support arrangement and, if requested, each party will provide the previous year's tax return for the yearly review.
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Old 11-04-2011, 10:42 AM
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Is he keeping in touch with their school? Meeting the teachers? Attending their extra curricular activities?

YES HE IS.
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Old 11-04-2011, 12:25 PM
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Unless the kids are over the age of 16, they don't get a say in whether or not they go with the other parent for their parenting time. To suggest anything to the contrary is putting the children in the middle and possibly a form of parental alienation.

A judge may LISTEN to a child's reasoning for not wanting to attend the NCP's parenting time, but may or may not agree with such reasoning (based on the maturity level and reason of the child). The older they get over 12, the more a judge will listen.

But if you have an agreement that provides for parenting time, and lets say the kids are like 6 and 9, sorry, they get no say. It is in the best interests of the children to have a relationship with both parents. And part of each parents job is to facilitate the other parents relationship with the children. Suggesting to the kids that they don't have to go for your parenting time is not facilitating your relationship, and therefore, not in the children's best interests.

As NBDad said, you start notifying her (edit - IN WRITING, via email) that you intend on exercising your parenting time and that, until the current agreement is amended to provide that the children have a choice, they are to be at the prescribed place at the prescribed time to attend your parenting time.
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Old 11-04-2011, 12:32 PM
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SA says the following "Given the age of the children, their wishes will be respected and should they desire to spend more time or less time at (dad's) residence those wishes will be taken into consideration".

1) The kids are 10 and 14.
2) (dad's) residence - meaning his house not necessarily meaning the dad himself correct?
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Old 11-04-2011, 12:47 PM
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Quote:
Originally Posted by Pippi123 View Post
SA says the following "Given the age of the children, their wishes will be respected and should they desire to spend more time or less time at (dad's) residence those wishes will be taken into consideration".

1) The kids are 10 and 14.
2) (dad's) residence - meaning his house not necessarily meaning the dad himself correct?
I would take it to mean it like that.

Also, it states that the children's desire shall be "taken into consideration". It doesn't say that they are able to determine whether or not they attend. It is ultimately Dad's decision on whether or not he causes them to be with him during his parenting time.

Now, that being said and all, with the 14y/o, they are pretty much old enough now and have enough of a life to give their say a fair amount of weight. But to me, the 10y/o doesn't get to determine whether or not they come. They can say they don't want to, give their reason why, but ultimately it is Dad's decision.
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Old 11-04-2011, 01:17 PM
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Question: In the SA it states "Neither (wife) nor (husband) will attend at the other's home or work without the other party's approval.

Given this is stated, how can dad even try and see kids if the mom states they don't want to see him?

Can sending this email to the (wife) be ok?

As per our LEGAL AGREEMENT dated June 30, 2011, it clearly states that I have joint custody. VERBATIM it reads: Point 3.1 "The children will be in the joint custody of (mom) and (dad) and the parties will jointly parent the child and make decision together on all major issues affecting the children's health, education and general welfare". Point 3.3 reads "(dad) will have access on alternating weekends to be extended to include either Friday or Monday of a long weekend as the case may be and a minimum of one evening each week. Given the age of the children, their wishes will be respected and should they desire to spend more time or less time at (dad's) residence those wishes will be taken into consideration".

With that being reiterated, I WILL BE exercising MY parenting time as per the LEGAL AGREEMENT and will be arriving to pick up the girls on X and taking them out for dinner and a movie.

LEGAL AGREEMENT says "their wishes will be respected and should they desire to spend more time or less time at (dad's) residence those wishes will be taken into consideration". Firstly, it states that the children's wishes shall be "taken into consideration". It doesn't say that they are ABLE to determine whether or not they attend. I have taken their wishes into consideration but I still want to spend my agreed upon parenting time with them. Secondly, dinner and a movie is NOT at my residence.

It is in the best interests of the girls to have a relationship with BOTH parents. And part of each parent's job, YOURS AND MINE is to facilitate the other parent's relationship with the girls. Suggesting to the kids that they don't have to go with ME for parenting time is not facilitating MY relationship, and therefore, not in the children's best interests.

(Dad)
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