almostheaven
Carpal \'Tunnel
Reged: 07/13/04
Posts: 10468
Loc: West Virginia
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It isn't a matter of what you "feel" you should get, but what the courts have set. If his income has changed, you can file for a modification. If he lied about his income, you can appeal the decision and they can go back and make him pay the back months. But until he's been ordered to pay something different, what he's ordered to pay is what he owes. If you file against him, he can always file something to counter it, including ask for custody. However, he didn't get custody the first time, what makes him think he'd get it now. AND, being in Italy ain't a gonna help him none. That may also play a bit in your favor in that he won't file anything counter because he's in Italy, but it may play against you because I believe if he's serving over there, anything you file will be put on hold until he's back in the country.
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Char Fox
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1966Gal
Carpal \'Tunnel
Reged: 04/04/08
Posts: 10098
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Definitly file for an adjustment of CS. Your ex is in the military and currently living out of the country. Now would be a good time to get that ball rolling because he's certainly not in a position to press for a change in custody.
When he get back, he might, but that's a bridge you can cross then. For now, you should make sure that you are receiving the correct amount of CS based on your and your ex's current income.
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The Gov cannot give anything to anyone - that they have not first taken away from someone else.
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Cassie23
Carpal \'Tunnel
Reged: 10/07/05
Posts: 14714
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What was his old income based on?
Where in NY are you located, what area?
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gr8Dad
Carpal \'Tunnel
Reged: 06/07/04
Posts: 30199
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...suggest taking advantage of a DEPLOYED military persons inability to respond BECAUSE of the distance as a good time to file against him?
He isn't MAKING anymore, he is getting a stipend because of the increased expenses of where he is stationed. Those extra expenses are NOT Mom's.
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Why give a "senior" discount, they have had plenty of time to raise the money...
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preemiemom
Carpal \'Tunnel
Reged: 01/17/07
Posts: 19391
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[quote]Where in NY are you located, what area? [/quote]
------------> Location should NOT matter. The CSSA is the CSSA. My attorney had some sharp words for your online advice, by the way, regarding CSSA and keeping on telling people there is a CAP. She got VERY angry at that, in fact. And said, and I quote.. "there is NOT a cap!!! A judge has the discretion to use a DIFFERENT percentage to money above X amount; however ALL income MUST be considered in calculating child support, specifically, to get to pro-rata shares". But she said NOWHERE does it say that money over $80K should not count, nor be calculated, nor have 0% applied to it.
And, as of 1/31/2010, the "80K cap" will no longer apply ANYWAY, since it is going up to $130K AND it will automatically be re-adjusted every 2 years, so in 2012 it will adjust again, as (I believe it is) CPI increases.
In THIS poster's case, she needs a "change of circumstance" to increase child support and she'd better have a DARN good case for one. Him being deployed, and receiving monies to live in an overseas location due TO that deployment? Is not going to cut it, quite frankly. If his W-2 income is still showing the same (or similar) amount from when their CS was calculated? Then it's unlikely she will get a mod.
Now, if she's saying that, when she agreed to that amount, that she was not aware of the appropriate calculation, via the CSSA, then that is another case; HOWEVER, typically there is very specific wording in agreements that state that each party acknowledges that they have received a copy of the CSSA, that they know what the CSSA calculation would be, and agree to any type of deviation from that amount.
I qualify for modification because I have a substantial change of circumstance in that Self-Support Reserve is not intended to be a permanent status and once a party is out of that status, based on their income at that time, the whole Child Support calculation would be different.
I'm not entirely sure that this poster has a case, and I'm even less convinced that she has one while the man is overseas, and unable to dispute/counterclaim any claim she might make.
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Cassie23
Carpal \'Tunnel
Reged: 10/07/05
Posts: 14714
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PM- I have always said that the courts CAN deviate from the guidelines of just the 17% on the full amount if they WANT. I have even explained as such 17% on the first $80k, and a different percentage (or the same percentage)if the courts so choose on the REST. The courts CAN deviate, and there are reasons to WHY they deviate. The CO has to have the REAL amount of incomes on it.
BM's lawyer told her it was THE NORM to cap where we live. That is what we were told. Also where we live, change of income is enough of a change of circumstance to modify income.
So your lawyer can have all the harsh words she wants for me, BM's lawyer and our lawyer AGREED that it was the norm to cap the income at $80k total with 0% thereafter.
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preemiemom
Carpal \'Tunnel
Reged: 01/17/07
Posts: 19391
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Just because it is "the norm" doesn't make it right. Go read the Quadrennial evaluation of the application of CSSA and see how those counties fare.
and yes, I would agree change of INCOME is a change of circumstance. However, payment of a per diem or other living expenses is not "income" necessarily. So to advise that she may qualify for an increase based on that amount, is ill-advised.
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Cassie23
Carpal \'Tunnel
Reged: 10/07/05
Posts: 14714
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Oh I agree- if she thinks that HIS income has changed, that's fine, but if she wants to count what he gets per diem then I don't think that counts at least it never has for H.
I am not sure what you are saying PM? We are saying the SAME thing. Courts can deviate based on some spelled out reasons to deviate if they believe that the amount of CS is unfair or unjust. If they do deviate on combined incomes over $80k (which is what it is till 1/31/10 until it hits $130k), they can use the 17% of the monies over $80k, use a different percentage, or 0%.
The lawyers in our area that we spoke to and BM's lawyer (who was a REAL jerk btw) said for our county cutting off at the $80k and using 0% past that was the norm. However, they didn't make much past $80k THEN. So maybe that is the difference? BM herself only made $9k that year. Theirs is spelled out in the CO, as to what each one really makes, etc.
How the courts/magistrates decide it- is what it is. Some apparently deviate, others don't. I always think it's best to come to an agreement if possible. Even dating back to two years ago when I was letting people on the CS board what happened in my H's case... I have always stated that the courts CAN deviate. They use the 17% on combined incomes past $80k, they can use a smaller percentage or 0%. That is the whole purpose of the combined incomes after $80k or soon to be $130k, isn't it?? It's there for a reason. Whether the courts choose it or not, it's there.
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Cassie23
Carpal \'Tunnel
Reged: 10/07/05
Posts: 14714
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I see that. I am only speaking off what I know, that we have personally dealt with in OUR own CS hearings. This is the way it worked for H and his X. I think people should be aware of the deviation, whether it's used or not- is anybody's guess?
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preemiemom
Carpal \'Tunnel
Reged: 01/17/07
Posts: 19391
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Yes, it will be 130K as of 1/31/2010. That's a definite. Signed into law. It will fluctuate every 2 years after that depending on whatever index it is they're using (CPI I believe it is). One of the NY lawyer blogs has the entire updated statute posted on it, I forget which guy it was.
I can see in cases where income is only very slightly above the current $80K that the 0% would be applied. As in my case, if you applied 0% after $80K, you haven't even considered all of just MY income, and you've not considered a single dollar of the other parent's.
Now, I've seen a lot of cases where the parties agree to apply 0% after $80K, but again, the amount above $80K was minimal ($5K or less), as in your DH's case.
I am glad they have raised the "cap", frankly. They did it, or so I read, because it was a more realistic representation of dual income households potential total income, versus the $80K.
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