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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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  #1  
Old 03-04-2020, 02:51 PM
Dad905 Dad905 is offline
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I have been trying to get my 2 children more for nearly a year due to a job change and better hours however now the ex and her lawyer are only making this about child support.

My agreement says I have joint custody. The agreement say I have the kids on a 2 week rotation: Sunday until 7pm. Wednesday and Thursday overnight. Following week is Wednesday overnight and then Friday-Saturday overnight.

When I changed jobs in April 2019 the ex allowed me 1 extra overnight Sunday (of my weekend). On all of my overnights I drive the kids to school (different city).

I am trying to prove I am over the 40% access however her lawyer disagrees. If it matters, she is also a teacher (makes over $40,000 more than me) at the kids school and the lawyer argues that while the kids are in school she is the primary contact and this time is counted as her time.

She is trying for full table amount child support. I countered with $0 each even if my lawyer says due to the large salary difference the court would likely use set off amount which would be in my favour. I only want my kids 50/50 however she is being vengeful and threatened if goes to court she would go for sole custody.

What are your thoughts? By my calculations I am over 40% by hours, days per month, days per year, overnights and lunches made for school. Her and her lawyer are now ignoring my letters since December.

Thanks
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Old 03-04-2020, 03:05 PM
rockscan rockscan is offline
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You might want to do a search on the forum on this topic. There are severals things to keep in mind.

First, joint custody is different than shared PHYSICAL custody. If your agreement says shared physical custody then there should be an element for 50/50 time and offset support. Joint custody means you share custody of the kids but their primary residence is with their mom.

Second, adding a day or two doesn’t suddenly change custody and she can just as easily claw back extra time if there is nothing in the order. Most agreements say “additional time as agreed upon by the parties” but that doesn’t mean she HAS to let you have that time.

Finally, you would have to demonstrate a material change to reopen custody. Changed job hours could be a material change but you would also have to demonstrate how that is a benefit to the kids. This sounds easy but material change can be difficult in some cases. If you live far away or in another city your ex could argue the hours make no difference because the kids are still spending a great deal of time in the car.

Like I said, do a search but having more than 40% doesn’t suddenly equal a change in custody. And if you are so adamant that this isn’t about support you wouldn’t have mentioned it three times in your post. It sounds a lot like its about support.
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Old 03-04-2020, 03:28 PM
Dad905 Dad905 is offline
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Quote:
Originally Posted by rockscan View Post
You might want to do a search on the forum on this topic. There are severals things to keep in mind.

First, joint custody is different than shared PHYSICAL custody. If your agreement says shared physical custody then there should be an element for 50/50 time and offset support. Joint custody means you share custody of the kids but their primary residence is with their mom.

Second, adding a day or two doesn’t suddenly change custody and she can just as easily claw back extra time if there is nothing in the order. Most agreements say “additional time as agreed upon by the parties” but that doesn’t mean she HAS to let you have that time.

Finally, you would have to demonstrate a material change to reopen custody. Changed job hours could be a material change but you would also have to demonstrate how that is a benefit to the kids. This sounds easy but material change can be difficult in some cases. If you live far away or in another city your ex could argue the hours make no difference because the kids are still spending a great deal of time in the car.

Like I said, do a search but having more than 40% doesn’t suddenly equal a change in custody. And if you are so adamant that this isn’t about support you wouldn’t have mentioned it three times in your post. It sounds a lot like its about support.


Very helpful thank you.

Support is not important to me. She is only making it about that and wanting full table amount when I already have the kids atleast 40% of the time. My argument is I shouldn’t have to pay full table support when I have the kids over 40% and my salary is so much less than hers.


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Old 03-04-2020, 03:38 PM
rockscan rockscan is offline
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Originally Posted by Dad905 View Post
Very helpful thank you.

Support is not important to me. She is only making it about that and wanting full table amount when I already have the kids atleast 40% of the time. My argument is I shouldn’t have to pay full table support when I have the kids over 40% and my salary is so much less than hers.


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Doesn’t matter. You will have to pay support unless you have the kids in a shared physical situation with an agreement or order for offset support.

It also doesn’t matter what her income is. She has full physical custody therefore you pay support.

Don’t believe the 40% hype. It matters little. Do a search on here and you will see the comments.

Again, material change for custody change!
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Old 03-04-2020, 03:40 PM
LovingDad1234 LovingDad1234 is offline
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Originally Posted by Dad905 View Post
when I have the kids over 40% and my salary is so much less than hers.
May not be about money for you, but don't be naive as it relates to your ex. When people fight about over or under 40%, it 98% of the time is about the money implications involved with that magic number (40%).

If your salary is much less than your ex's, and you are over the 40% threshold, your ex would need to pay YOU offset child support. THAT is the most likely reason they are fighting on "whether or not" you are over the 40% threshold.

I was told that judges don't necessarily get into the weeds on counting hour by hour as thats micromanaging time, but rather what you need to achieve is 6 overnights per 2 week period. 6/14= 42%
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Old 03-04-2020, 03:48 PM
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Originally Posted by LovingDad1234 View Post
May not be about money for you, but don't be naive as it relates to your ex. When people fight about over or under 40%, it 98% of the time is about the money implications involved with that magic number (40%).



If your salary is much less than your ex's, and you are over the 40% threshold, your ex would need to pay YOU offset child support. THAT is the most likely reason they are fighting on "whether or not" you are over the 40% threshold.



I was told that judges don't necessarily get into the weeds on counting hour by hour as thats micromanaging time, but rather what you need to achieve is 6 overnights per 2 week period. 6/14= 42%


Which I have 6 overnights in a 2 week period. Status quo since April has been 6 overnights every 2 weeks.

I 100% agree this is only about her protecting her own finances. Where I get confused is why she would demand full table amount, when I respond with $0 ... then she goes silent and no responses since December. If you actually believe ur entitled to full table child support would you not pursue it harder ?

I believe she is forcing my hand and the lawyer says court is my only option to settle.
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Old 03-04-2020, 04:01 PM
standing on the sidelines standing on the sidelines is offline
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Originally Posted by Dad905 View Post
Which I have 6 overnights in a 2 week period. Status quo since April has been 6 overnights every 2 weeks.

I 100% agree this is only about her protecting her own finances. Where I get confused is why she would demand full table amount, when I respond with $0 ... then she goes silent and no responses since December. If you actually believe ur entitled to full table child support would you not pursue it harder ?

I believe she is forcing my hand and the lawyer says court is my only option to settle.
that is exactly what she is doing. She wants you to take it to court and until you do she wont change her stance. Just remember though, once she gets the papers she probably will start following the old agreement to the letter.
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Old 03-05-2020, 10:31 AM
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Janus Janus is offline
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Originally Posted by Dad905 View Post
Support is not important to me... My argument is I shouldn’t have to pay full table support


Almost 100% of the 40% fights are about money. On both sides. Your fight does not appear to be an exception.

Side note: This is why I always tell fathers to never accept anything less than 50%. If Dad905 had 7/14 nights, this would not even be a discussion. That one night makes all the difference.

Side note 2: As rockscan hinted, if you currently pay support and you climb above 40%, it is quite likely that you will be ordered to continue to pay support. I
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Old 03-05-2020, 10:32 AM
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Originally Posted by Dad905 View Post
My agreement says I have joint custody. The agreement say I have the kids on a 2 week rotation: Sunday until 7pm. Wednesday and Thursday overnight. Following week is Wednesday overnight and then Friday-Saturday overnight.
How is this 6/14?


Week 1: Wed night, Thu night
Week 2: Wed night, Friday night, and possibly Saturday night.

That sounds like at best 5/14, which is under 40%. If you agreed to that 5/14 on consent the probability of you getting it changed is really low.
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Old 03-05-2020, 10:44 AM
LovingDad1234 LovingDad1234 is offline
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if you currently pay support and you climb above 40%, it is quite likely that you will be ordered to continue to pay support. I
I am in the graduated parenting category where I will eventually climb above the 40% threshold. My lawyer ensured to include a clause in the Court Order that once I reach 40%, CS will be offset. Which I think tends to be the norm.

Interestingly, my ex ensured that when I exercise 6 out of 14 overnights, the total # of hours STILL falls short of 40%. I know she did it on purpose to cut the hours and will make a production of things when I reach 6 overnights....
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