Do we have a bargaining chip?

[wldcherry1]

SOC need your advice again.  Same basic subject.  DH and Ex have been divorced four years.  They were married less than ten years so DH would have to pay EX her portion of military retirement directly.  If he refuses she must take him to court.  EX was suppose to initiate paperwork to release DH's VA Loan and if DH is unable to secure release of VA Loan when EX vacates house as her primary residence she must refinance.  She has not done anything since the divorce.  DH has since retired and was ordered to pay EX a percentage of military retirement.  DH and EX had a verbal agreement that as long as she does not release VA loan DH does not pay retirement.  Of course it is not in writing.  Of course EX is claiming that there was never an agreement and wants her portion of the retirement.  DH wants to tell EX that if she pursues this action that he will be forced to request a reduction in CS, clarification of amount of retirement as decree is not clear, new parenting plan requesting half transportation, abatement of CS during lengthy visitation, claiming on taxes every other year etc.  Right now DH pays high CS and EX pays nothing for transportation etc.  One of the reasons we have not gone back to court is that we live in Europe at the moment and EX is still in the states.  However if EX takes us back to court then we feel that the trade off is worth it.  

1.  As far as the verbal agreement.  EX claims there is none but would have a hard time explaining why she has not refinanced the house or at least attempted to initiate the paperwork to release DH's loan.  What do you think the a lawyer's or judge's reaction would be?

2.  As far as requesting the CS reduction and an evening of the expenses, would it look vindictive on DH's part or that he is reacting to a change of circumstance.  DH was not going to ask for a CS reduction but if EX insists that there in no agreement and wants her portion there is only so much money to go around.

3.  DH hurt his back in the military and is seeking VA disability so he was not planning on getting a job and living off retirement.  What is your opinion of the judge imputing income?  Especially since DH was not going to ask for the reduction until EX reneged on the agreement?

Again thanks for your time and putting up with my many ways to beat  this horse.

[socrateaser]

>1.  As far as the verbal agreement.  EX claims there is none
>but would have a hard time explaining why she has not
>refinanced the house or at least attempted to initiate the
>paperwork to release DH's loan.  What do you think the a
>lawyer's or judge's reaction would be?

A court order is not optional. You cannot agree with the other party to waive some provision of the order, and thereby relieve yourself of the court ordered obligation. Your facts state that a verbal agreement exists, but, even if you could prove such an agreement, it would not overcome the court order to pay support. Therefore, you must pay support, and file in court to force the other parent to refinance the existing loan.

>
>2.  As far as requesting the CS reduction and an evening of
>the expenses, would it look vindictive on DH's part or that he
>is reacting to a change of circumstance.  DH was not going to
>ask for a CS reduction but if EX insists that there in no
>agreement and wants her portion there is only so much money to
>go around.

The agreement is void, because it is invalidated by the court order, therefore the question is irrelevant.

And, because there are no facts with which to analyze your statement that a "change of circumstances" exists for the purposes of modifying support, I cannot comment further.

>
>3.  DH hurt his back in the military and is seeking VA
>disability so he was not planning on getting a job and living
>off retirement.  What is your opinion of the judge imputing
>income?  Especially since DH was not going to ask for the
>reduction until EX reneged on the agreement?

To impute income requires proof of earning capacity, i.e., (1) ability to work, (2) availability of work, and (3) willingness to work. Prove 1 and 2 true and 3 false, and the court must impute, otherwise not.

Your facts state that DH has a bad back, so if the other parent cannot demonstrate that there are jobs that you have the ability to do even with a bad back, then no imputation, otherwise the court will impute.