Messages

Thanks! My understanding is tyhat, since ex retained an attorney, all correspondence re. this motion needs to be addressed to the attorney.

1. Is it legal (kosher?) to copy my ex on this correspondence?

This concerns a CS mod that I (CP) initiated. I'm pro se, NCP has retained an attorney--this is in Washington state. Court date is November 4. Interrogatories (to be answered) are due 28 days before court. I received interrogatories from them in September. I answered, and penned my own for them. I mailed them Oct. 6 (priority mail, for what that's worth). They apparently weren't received until Oct. 12.

Received a letter from attorney last Friday (14th) stating that they were received after deadline and thus wouldn't be answered. Specifically, he states, "The cut-off date was October 7, 2005 for this case (see page 4 of the case schedule. Since documents sent via mail are presumed to take three calendar days to be received, your request for Interrogatories was submitted after deadline to complete discovery; therefore [NCP] is under no obligation to respond , and your Interrogatories will not be answered."

The '28 days' was in the case schedule, and I was clear on that. I'd never heard of any '3 days for mail' rule, and I suspect it's a convention and not a 'rule', per se.

1. Do you know if this is a case where an attorney is trying to 'pull one over' on a pro se adversary (I know there is some gray area in the dates my interrogatories were mailed/received), or is this a clear and simple screw-up on my part?

2. Is there any way at this point that I can compel them to answer the interrogatories? (Filing a motion?)

Thanks.

Thank you for your answer--I appreciate it. CS was last court ordered in 1998, when ex was an E-3. He subsequently went to OCS and, upon disharge, was an O-3 making ~$48K more than he did in 1998. My income has risen ~$6K in that time.

He left the army in January and is returning to school for his second bachelors degree, using the GI Bill (and living, presumably, on other financial aid and/or his wife's income). To the best of my knowledge, he is not working (full or part time)--he hasn't reported any income from a job.

If they used his army income, his CS obligation would more than double (more than I'm asking for, actually). If they used the imputed income for his age, it would still go up from the court-ordered 1998 amount. The only way I 'lose' (i.e. CS goes down) is if they impute his income at less than the state median for his age. I find this unlikely, as his income was (already) imputed at $0 for two years while he pursued his 1st bachelors degree.

I am disinclined to 'take less' than what I think is a fair and just amount (and that is still anwhere from $175-$300 less than guideline using his army income (depending on what allowances they would consider as income)). I have consistently worked with him and given him breaks when he cried poverty, on the assumption that he was telling the truth and that the consideration would be returned. Based on observation, his perception of poverty is different then mine (poverty for him appears to equal not being able to buy new clothes every month). Based on experience, the consideration is not returned and when I attempted to negotiate an amount that inconvenienced him (nevermind it still being significantly below guideline), he squawked. At this point, I see no advantage to being 'nice'. I know what I feel is fair and just, and I will press for that in court. Trying to reconcile an amount that will leave him walking away happy is no longer a priority.

Thank you again for your answers. I do, of course, have more questions. ;) If you have time to answer them (they are largely requests for clarification), they are marked with *** below.


>>2. Some of the information I want to get from them in the
>>interrogatory I will send him is if he/his wife have other
>>bank accounts then the (depleted) one he's reported (and
>their
>>balance). I also want to find his wife's income
>>(relevant--shows his ability to pay since he is unemployed
>>student). Suggestions on how to do this? Interrogatory?
>>Subpeona?
>
>Let me start by stating that I don't know whether or not the
>new spouse's income is a factor that the court may use to
>calculate ability to pay. There are frequently a number of
>other factors that must be met before a judge will find that a
>person is deliberately underemploying themselves and is
>relying on a new spouse's income. So, it may NOT be relevant
>or even "reasonably calculated," which makes it very difficult
>for me to tell you how to get the info....I would simply start asking and see what objections you get
>back, and then take it from there.
>

***Is it made more relevant if his reported household expenses exceed *his* reported income? [I.e. His only reported income at this point is $1100/month froma GI Bill. His reported (shared) expenses are roughly $2K/month.

>>
>>3. Any suggestions on how best to frame my argument that the
>>court should impute his income at demonstrated earning
>>capacity? Or, failing that (since army income might be
>viewed
>>as non-replicable), that they should take into account his
>>education and experience level and impute it higher than the
>>state average for his age?
>
>You can ask the court to order the person to submit to a
>vocational evaluation with an expert. You can also just show
>evidence of jobs from the classifieds or online sources for
>work that the other party has previously done, and then ask
>that the court either impute earning capacity or order the
>other party to "seek" work comensurate with their apparent
>earning capacity, and then regularly report to the court on
>progress.
>
>It's tough to prove that the other person can earn more, when
>it's a borderline case. Imputing income is more useful when
>there is an obvious and gross disparity between a person's
>actual income and their past demonstrated earning capacity.
>You need to try to make your case "obvious" to the court,
>assuming that it is obvious.

***Until he left the army in January, he was making approximately $70K/year ($48K/base pay and $22K/allowances). He is now reporting $13K from the GI Bill, and has not reported income from any job (full or part time). Would this be an 'obvious' enough disparity? (Or will the courts ignore it because he was military?)

>>
>>4. How sympathetic have courts been , in your experience, to
>>imputing an NCP's income at a lower amount than actual
>earning
>>capacity when NCP is pursuing a degree? (Does it make a
>>difference if it's a second bachelors degree?)
>
>My experience is that the court is more sympathetic to a
>situation where the child is younger than older, because there
>is a longer period of child support to which more education
>may be applied. If the child is 17, and the parent is looking
>for a new degree when they're 50 years old and have been
>working in their profession for the past 25, then the court
>will probably say, "That's nice...go to school if you want,
>but keep paying support at the imputed rate."

***The child is nine. It will be my ex's 2nd bachelors degree. His income was imputed at $0 for two years while he was pursuing his first bachelor's degree. I hope they won't 'under-impute', but I guess we'll see in November.

>>6. To the best of your knowledge, will my having another
>child
>>to support (mine and my husband's), have any bearing on the
>>determiniation of CS?
>
>No. The paying parent has no obligation for a child not his
>own, legally. You chose to have another child with another
>partner, so it's your problem to support that child.
>
***It may not change the answer, but I'm curious...If an NCP has a child w/a subsequent spouse, the NCP's financial obligation to the 2nd child can reduce his/her 'considered income' in determining CS for thw 1st child. Does it not work the same if the CP has a child w/ a subsequent spouse?

I'm petitioning pro se for a CS increase in King County, WA. CS last court ordered in '98. Father in army 2/98-1/05. We agreed to an upward mod in 2003 based on increased income (agreed amount was less than guideline would have been; agreed on mod not court ordered). Father reverted to court-ordered amount upon separation from army (as agreed--agreement also entailed revisiting the CS amount a few months after Father left army, giving him time to get a job).

Father has not pursued full time employment since leaving army; he is pursuing a (second) bachelor's degree instead. Both of us are married; his wife is working, my husband is a SAHD returning to school this Fall to complete his (1st) bachelors degree. Father retained an attorney for this mod. We've exchanged settlement letters and are at an impasse. The issue seems to be whether his income will be imputed at the state average for his age (their argument) or on his actual earning capacity (my argument).

I just rec'd interrogatories from his attorney to fill out. I know (from having read these boards awhile) that you can ask for (pretty much) any information in an interrogatory, but you don't necessarily need to amswer every question.

1. As a pro se in this case, should I pick and choose what to answer (i.e. if I don't think it's relevant or *helpful* to my case, should I ignore it, or should I make an effort to be as transparent as possible)? (I don't feel I have anything to hide, but I also don't want to shoot myself in the foot by giving them more info then they need.)

2. Some of the information I want to get from them in the interrogatory I will send him is if he/his wife have other bank accounts then the (depleted) one he's reported (and their balance). I also want to find his wife's income (relevant--shows his ability to pay since he is unemployed student). Suggestions on how to do this? Interrogatory? Subpeona?

3. Any suggestions on how best to frame my argument that the court should impute his income at demonstrated earning capacity? Or, failing that (since army income might be viewed as non-replicable), that they should take into account his education and experience level and impute it higher than the state average for his age?

4. How sympathetic have courts been , in your experience, to imputing an NCP's income at a lower amount than actual earning capacity when NCP is pursuing a degree? (Does it make a difference if it's a second bachelors degree?)

5. Would recent large purchases ($22K cash for a car) have any real bearing on how the court viewed his ability to pay? (I know it wouldn't legally--but dang, that's a heck of a cash layout when he's anticpating 'student poverty'.)

6. To the best of your knowledge, will my having another child to support (mine and my husband's), have any bearing on the determiniation of CS?

7. Can you give me suggestions (other than go to the local law library, which I'll do) on how to search law, administrative code and case law releavnt to issues of imputed income, and in-kind income (since a significant minority of his army income could be viewed as in-kind)?

Thank you for all your help. :)

Thanks for the compliment! In some other version of my life I can see myself practicing law.

In my (anecdotal) experience with WA case law, it would be a hard sell getting the NCP to pay daycare costs to the CP's spouse (there seems to be an emphasis on 'parent' in 'step-parent' in the WA family law I've come across). I think I'm pretty safe here.

Hopefully they'll find my proposal as reasonable and we can settle this. I'll let you know. :)

I am pursuing a CS mod (I am CP). My ex was an officer in the army and got out in January. He is going back to school for a (2nd) bachelors degree rather than pursuing full time employment. Court ordered CS is $294 (order was from 1998). Based on an agreement between us (not filed with the courts) he paid an additional $200/month directly to me from April 2003-January 2005.

I served him in early July and filed two weeks later. I received a settlement letter from a lawyer he retained. This (pasted below) is my response to him.

1. Does this come across as reasonable, intelligent and unemotional?

2. Am I hanging myself with this letter?

Thanks!



July 29, 2005

Mr.  D
Seattle, WA

Re:   Child Support Modification
   KCSC Case No.
   Your File No.


FOR SETTLEMENT PURPOSES ONLY

Dear Mr. D:

Thank you for your letter of introduction and proposed settlement. As I noted in my July 20th email to your office ('[email protected]') I filed the petition for modification in King County on July 18th.  I am hopeful that we can come to an amicable resolution.

I appreciate the law lessons implicit in your letter. I am aware that the court will impute income to (voluntarily) unemployed or underemployed parents in determining child support. The court bases imputations on demonstrated earning capacity; where no such history exists, the courts may use the median income (based on age) that you reference in your letter. Robert does have a demonstrated earning capacity that is far greater than the median of $2,154 a month; I find it unlikely that the courts will ignore this.

I am generally sympathetic to the desire to further one's education. I was very specifically sympathetic to Robert's desire to do so when child support was being determined in 1996. At his request, I acceded to his income being imputed at $0 a month at that time so that he could pursue his first bachelor's degree; this imputation of $0 income stood for over two years until child support was modified following his enlistment in the army. Having already made such a concession to Robert's desire to further his education, and taking into account that Robert has a bachelors degree, I feel no obligation to agree to an imputation of income for Robert that is less than his actual earning capacity simply because he wants to pursue a second bachelors degree.

Based on the pay stub of Robert's you provided, he was earning (and has an earning capacity) of $6120.30 per month (net). Taking into account my monthly net income, that results in a transfer payment of approximately $730. I will, for the sake of settlement purposes, discount the allowances for housing, food, etc. that make up a significant portion of military pay, and only look at Robert's base pay of $4367.70. My income was reported accurately on the child support worksheets I submitted to the court (I get paid 24 times a year). Using these figures results in a child support amount of $936, of which Robert's obligation would be $617.

Robert has paid guideline child support for Son (per his income in any given month) for less than six months out of Son's nine + years (this includes our voluntarily agreed upon increase in 2003, which set child support  at least $200 under guideline) . I strive both to be fair and to do what I can to ensure an amicable parenting relationship with Robert. In that spirit, I am willing to agree to a child support transfer payment of $500 a month (significantly lower than guideline, and the same amount I agreed to in 2003). If your client is amenable to setting child support at this amount, please draw up the paperwork and send it to me for signature. If we can agree on this amount, I am amenable to waiving the difference for July and August and having the new amount due starting September 1st.

Regarding the 'checkboxes' you addressed in your letter:

Day care—Matthew (my husband and the stay at home parent at our house) will be returning to school Fall quarter to complete his degree (his first bachelors degree, if you were curious). This will almost certainly necessitate before school care for Son. Please advise Robert that I expect this amount to be between $120 and $200 a month (I have not yet priced it and am estimating the amount based on past experience). As before, I am willing to ignore the fact that Robert has a greater income (or earning capacity) and split this expense 50/50.

Educational expenses—This has been a provision of our child support order since 1996. Robert can attest to the fact that this has been (and remains) a 'dormant' provision. Nonetheless, I expect to keep this provision in our order in anticipation of post-secondary expenses (to use your language, it is "an effort to insure don't lose a provision of the existing order").

Uninsured health care expenses—Robert and I are in agreement with continuing the provision.

Automatic adjustment of support—I am willing to waive this if Robert agrees to the proposed $500 transfer payment.


Mr.  D, I am confident that what I am proposing is fair to Robert and a reasonable-to-best-case scenario for what he could expect the court to order, should we go to court. I look forward to receiving your response.


Best Regards,

Rey

Thanks for the info...I am the CP and am trying to adjust CS up, not down.

1. Could I expect CSE to move with any kind of alacrity re. an upward mod?

2. What (if any) ability will I have to plead my case if I pursue a mod through CSE?

3. How (if I went pro se) would I argue/show the NCP'searning capacity to be equivalent to his army income? (This last may seem an obvious question--i.e. if that was what he was earning, that's his earning capacity--but I'm leery of judicial military sympathy such that they disregard his earning capacity [happened to me in 1998 inasmuch as they disregarded all in-kind (BAH, BAS) income].)

Socrateaser, long-time reader, first-time poster. Thank you in advance for any help you are able to offer.

All parties reside in (and order is in) WA. NCP pays through CSE. Order was last officially modified in 1998. NCP was in military 1998-Jan. 2005. Order was unofficially modified in 2003; CP and NCP agreed on higher amount due to NCP's increased income. Agreed amount was ~ $200 less than guideline but was NCP's income-proortionate share of what CP estimated the child-related expenses to be. Agreement had NCP paying court-ordered amount through CSE and the rest to CP directly, with the understanding that it would revert to court ordered amount only for a period of time upon NCP separating from army.

NCP discharged from army this past January; CS reverted to court ordered amount only in February.  He returned to WA with his wife in March. NCP intends to be full time student (he already has a BA). NCP is currently not working (he reports he and his wife are living off savings). CP & NCP are discussing CS (e.g. fair amount, etc.). I hope to negotiate an amount that is 1/2 of (CP-estimated) child related expenses. This amount would be guideline if NCP were making $33k (NCP's base bay in army was $48K+).

If we can't agree, I intend to pursue a modification through the courts.

1. How likely would it be (how standard is it) for income to be imputed if a (NC-) parent is un-/under-employed? (Conversely, how likely is it for a judge to impute his income at $0?)

2. Would the imputation be based on NCP's previous income, state's median for his age/education, or...? (I ask this because I expect a judge would view his army income as extraordinary and not duplicable in civilian life)

3. What are the pros/cons of pursuing a modification through CSE vs. pro se?

4. How long could I reasonably expect a modification to take (through CSE? pro se?)?

Thanks,

Rey

You have the right to say "no" to any requests from the NCP for time that isn't specifically granted in the custody & visitation order.

If you're like me, it probably helps you to know (really know) what your rights are under the law...and being in the power position (as you probably are in this case) is a *big* bonus. And you will also no doubt realize that laws are clunky tools at best for mediating emotions and relationships.

So yes, you do have the right to say "no" to any requests from the NCP for time that isn't specifically granted in the custody & visitation order, but that does not (necessarily) mean that denying such a request is "right." You are probably still pretty angry at your ex (for whatever reason(s))...if there are not safety/endangerment issues (e.g. your ex drives drunk regulalrly etc.), I would suggest letting your child have the time with his father. If you think you're too close to/angry about the situation to make a fair decision, ask the advice of a close friend (someone close enough to know your situation, but 'far' enough that they aren't emotionally invested in it).

Good luck. It sucks to be in that hostile-ex-partners state...sucks even more when you're trying to navigate what's 'fair' in regards to the child. :(