CJNCP
recently joined
Reged: 11/30/09
Posts: 13
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My question involves child support in the State of: NY
My situation has been 15 years in the making. After a child support order issued in 1998, my income has gone up and down with intervals where I was on unemployment.
Instead of necessitating trips back and forth to the court for upward and downward modifications, my ex and I worked this out on our own using NY State child support formulary. Over the course of years, every so often, my ex would assert arrears based on the original court order (income drops and unemployment resulted in lower payments) we discussed this through (at one point I asserted that I could go for a modification and she became very upset) and always resolved…or so I thought.
She has once again come to me and is again threatening court for arrears, citing the original order.
I realize my biggest mistake was not seeking relief or a modification from the courts.
Here’s the details:
Issue: Child Support – arrears claim by mother
No. of Children: 3 (current ages 23, 21 and 19)
Divorce: Fought for custody 1995-98 lost to mother as decision states mother would not be able to mentally / emotionally maintain a relationship with the children were she in a non-custodial role. I won divorce by merit of cruel and inhumane treatment.
Original Child Support order issued in 1998. Despite my income ups and downs, no formal modification was by either of us through the court as we either upwardly or downwardly modified the support on our own using the NY state percentages of income less FICA & Medicare (or so I thought).
Summary:
· From 1998 through 2004 as my income rose, I advised her and we increased support based upon NY State’s formula of 29% less FICA / Medicare for 3 kids.
· In October, 2004 I was let go. We decided to base the child support calculation on my unemployment compensation.
· Unfortunately, I was unemployed longer than anticipated. We based the child support calculation on my unemployment compensation for 2005, 2006 and part of 2007.
· End 2007 and for 2008 and 2009 I was employed and we based child support on that figure.
· In 2010 I got another job, slightly higher income and we based child support on that figure
· End 2010 I was let go from that job and was on unemployment through Oct 2011
· Oct 2011 I got another position and we have been basing child support on this income
Other Info:
· My oldest son graduated from high school in May, 2008
· He joined the Navy March of 2009, quit the Navy returning back to his mother’s home in December 2009 and began college January 2010. He turned 23 in January 2013.
· My 21 year old son moved out of the mother’s house April 2012.
· My daughter is 19 years old, living w/her mom and going to college full time.
· Mother is currently in the county court for a $13,000 debt
Can anyone give me a clear picture of what would happen if she petitioned the court for arrears based on her math from 2004 forward? Would they consider it? If so, would they look at the entire time period? Would they not questions why we never came before them earlier and see by merit of consistently paying child support that she’s not being above board? Would they look negatively or favorably on me attempting to work it out together with her and give me credibility for not petitioning them for downward mod’s when I was on unemployment? I remember the last thing the divorce judge told us was to work out all our issues outside his courtroom in the future.
I really need to avoid court at all costs as I work for a very small and very conservative company with “at will” terms of employment. Having experience staring at the barrels of this county’s judiciary discretion, I cannot afford any public record of this much less a garnishment of wages should it go that route (is that automatic in these cases in ny?)
Summary of mom's position: I really don't care what I get. If the judge tells me 'lady, you're crazy, get out of my courtroom. I"m giving you nothing, then at least I'll know someone else reviewed it and I can walk away.".
But then she tells me that she's going for $18,000, thinks she'll get somewhere between $12-13K.
I consulted with a lawyer yesterday and she advised me to offer her $6K, keep proof that I made payment directly to her then modify the support order thru the courts and be done with it. I"m not financially prepared or able at this point to go above 8K.
any thoughts on how best to negotiate, given my relatively idiotically defenseless position?
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c_jane
Pooh-Bah
Reged: 04/06/07
Posts: 1759
Loc: In the Great State of Texas
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So now you know why *everything* should go through the courts......
My 'take' on what the courts will do is take the years of CS up to now times the money/month you were SUPPOSED to pay = TOTAL.
Then you submit to them all your receipts, cancelled checks (which hopefully state clearly 'child support payment for Month/Year'), subtract it from THEIR total and voila! They Come up with arrears for you.
THEN you can also submit records for the year(s) you were unemployed and fight for a reduction to be applied to those year(s) -- which the judge may or may not grant.
I hope you have kept METICULOUS records of what you paid her and when. Even then it's not a slam dunk that the CS department will take YOUR records as verification.
You NEED a lawyer.
--------------------
John Constantine: God's a kid with an ant farm.... He's not planning anything.
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CJNCP
recently joined
Reged: 11/30/09
Posts: 13
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I'm being told several times I need a lawyer. How can I feasibly represent myself with a lawyer to defend a child support arrears assertion. Even thought I Have documentation (meticulous - checks that do have the memo child support, records of everything - agreements signed by both of us - even though these may not matter.) I would think a judge would look at me spending $'s on a lawyer (truth to tell, I really cannot afford one too) as foolish when I could just as readily give that same money to my kids.
I've already given the ex an additional $800 over current obligation and she wants to meet end of this month to discuss things going forward (adj for 1 child, settlement of her arrears assertion, payments). She's in a jam and needs money as I found that she is in the same county court with two creditors having a "judgement and stipulation of settlement" order end April.
I'm hoping she's truly legit about negotiating and not using this to try and serve me (would there not be a file on the county clerk's website if she were prior to her being able to serve me?)
In the end, my best hope is that she'll settle with me and barring that, that I have a judge who will take into consideration my documentation. It seems as if there's no other option and If there's any way I can get a lawyer to represent me for free or a very cut rate, please let me know because it's obvious I should not be representing myself.
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