undue hardship

[farmgirl5]

in a nut shell:
I have asked the court to eliminate my child Support payments based on the fact that I have four children in my home, she has our two children, her household income doubles mine. (Undue hardship) At the case conference she demanded to see my farm bussiness records and proof that my current wife and I share ownership. What sort of stunt is she trying to pull here?
Our farm reported a loss last year and will again this year, so it won't raise my income for the porpose of calculating child support, will it?
Also duty counsil made a note that I'm not sure what to do with, it reads
"evidence of her ability to work-(legal issue)-can he assume her income should be higher?"

[Kimberley]

If you are claiming undue hardship then she is required to provide financial disclosure. You should also provide an updated financial if yours is more than 30 days out of date for establishing a child support amount. A court can be requested to impute an income when a person is purposely under-employed for example. So if someone has the ability and the means to get a higher paying job due to education etc, but they work at a menial job making under what their potential is, an income can be imputed. Depending on the circumstances, many undue hardship claims are unsuccessful as the court sees the first children, and then the second children. You may end up paying under the guideline amount, but again, the court will decide this. As I said previously, if your financial disclosure is more than 30 days old (although if you are the one that has filed the motion for the reduction, you should have provided financial disclosure at that time) then the onus is on you to prove that paying child support for your 2 children with your ex would in fact cause an undue hardship.

[NoahJenda]

Undue hardship claims are notoriously difficult to win, for obvious reasons. If they were easy to win, the courts would be overwhelmed with applications from people trying to lower their child support obligation. Undue hardship claims rarely succeed, so you may have to brace yourself for the possibility that you'll have to continue to pay the full amount of child support.

For this claim to be successful, you first have to prove that the Guidelines amount of child support is not just hard, it's exceptionally and disproportionately hard. You pretty much have to show that you simply don't have the means to provide the amount of support under the Guidelines. The fact that she makes twice as much as you has nothing to do with your ability to pay.

In order to determine if there is undue hardship, and to establish a fair amount of child support, the court will want to explore the household standard of living, not just your own personal income. That's probably why your ex is asking to see business records to determine your current wife's participation. They're probably trying to show that either your income or your wife's income is lower than it could or should be. The court will also want to be satisfied that you're doing everything you can to make a living.

So, you're in a bit of a bind. But there's some good news. Farming is a legitimate business, and sometimes it can't be helped if it's not always successful. So you might want to consider dropping the hardship claim and simply asking the court to vary the amount of child support to match your current income.

Also in your favour: you have six children you're legally obligated to support. That on its own could persuade the judge that you simply don't have the means to deal with it all, considering the poor performance of your business.

Your job is to do the math for the judge. Report all your income and expenses. Show the judge you are trying to make a living and support a bunch of children, and there's simply not enough left over for child support. Persuade the judge and don't bother criticizing your ex. Your attitude and sincerity will probably carry a lot of weight.

[FL_Needs_To_Change]

Very well stated "NoahJenda" this is very good advice that I suggest you follow.

[farmgirl5]

Yes, I understand how all that, we have already submitted a comparison of Standards of Living. What I am trying to figure out is this:
1.What has my ex got to gain by seeing my business records (for my farm)
2. If the farm is reporting a big loss is there any way she can say that the farm contributes to my income?
3. Why does she want to see the deed for the farm proving that my current wife and I share ownership?
4. Should I be doing anything to show that she could be working full time?

[farmgirl5]

Thanks, it actually looks pretty promising. It's frusterating that EVERYONE says that undue hardship cases are so extremely difficult. In all my asking around I have only ever found one person who tried for undue hardship and that person won. I think that mabey proving undue hardship isn't that hard. Having the determination to go thru with it despite so many discouraging remarks and dismal predictions is what is really hard. I have two court dates left, it looks like. Can I ask for her to prove how much her spouse makes? If so what for do I need for that? Any other helpfull advise would be appreciated.

[NoahJenda]

Farmgirl,

Everything I know about undue hardship claims is that they are indeed very difficult to win. But don't give up hope -- from what I can tell about your circumstances, you may just be able to get the claim to stick. You have six mouths to feed and a farming business that's incurring losses. If there's no money, there's no money.

Let me give you a tip, though. In all of your posts, you've mentioned her income/financial circumstances. That point won't interest the judge. Undue hardship claims are about the payor, not the receipient, of child support. The judge will look only at your circumstances to determine if the hardship claim can be justified.

Ifthe judge accepts the hardship claim, only thenwill the judge explore the financial picture of both parties. So your job in the short term is to focus on convincing the judge that your circumstances are such that you simply cannot pay the full amount of child support. Don't bother making complaints about her income -- the judge won't care.

If the judge agrees that you can't pay the full amount, he/she will then review the entire financial picture to determine what amount you can pay. (The judge will explore the financial situation of each household, not individual, so yes, her spouse's income I expect will come into play at that time.)

Good luck!

[farmgirl5]

OK, new question, the judge asked me to recalculate the standardof living for each household using a program that a lawyer would use. I'm not sure of the name of the program, I can't read the writing on the note from duty council. After some asking around I'm told that it might be called Divorce Mate. Does anyone know anything about this? What might a lawyer charge to do these calculations with this program? Is there anyway to get this done without hiring a lawyer? (I don't mean to sound cheap, but we wouldn't be in this if we had money to throw around) Thanks

[FL_Needs_To_Change]

I think you are correct, the soft ware is "Divorce Mate" and I highly doubt that a lawyer would allow access without a fee. Your position would be to find someone willing to make the calculation at the lowest cost, on a pay as you go basis rather then retaining the lawyer out right.

This is available to the puplic but the cost is VERY steep and only a law firm can justify it's cost due to high usage.

[frustrated11]

I think that some of the courts have the program in their library and maybe you can ask duty council or one of the clerks there if you can use it or hire someone there to use it for you

[farmgirl5]

so, what happens after the case conference? We saw the judge for the case conference at the beginning of Dec, our next court date is Feb 3. Is the end in sight??

[dadtotheend]

Depends on how committed you both are to settling. One or both of you could draw it out for months, even years.