FL DOR Question

[FLMom]

State of Florida. I am NCP mother, ex is CP.

I know that you can't remember each post, but I can't find my previous post in order to update. I'll try not to be too wordy in case you do remember snippets.

I am in arrears for a few months in 2005. Ex went to DOR and they have filed a "Motion to Intervene". I took your advice and adopted the attitude that it would be more troublesome and costly to fight the intervention than it would be to just let it happen.

Local legal counsel did not at all appreciate this.

My (now ex) attorney got extremely ticked off at me about not fighting intervention. He was my atty for the previous go-round. We had a brief phone conversation in which he then said, "I'll call you right back". That was weeks ago.

Interview with possible new atty. "We must fight this. I'll be there for you for the DOR hearing and then we'll go from there. BTW, that'll be $2000 for the hearing, and then we'll go from there".

Can't afford it. So, I'm going into this hearing on my own.

Since the start of this DOR motion,  I've figured out that my ex, under the CS guidelines, will owe me child support. The visitation amounts are over the 40% line that changes the formula for calculations.

Only problem is, I'm afraid that ex will suddenly want to go by the visitation in the last order, even though it hasn't been followed for well over a year now. I don't even want or require the CS from him---I just would like the leverage so I can maybe talk him into true joint with no primary, split IRS deductions and living the next 8 years with no CS either way.

It seems like I should actually WANT the Motion to go through, because as soon as it does DOR will be required to assist me in modifying the CS amount.

I have no idea what's going to happen in the hearing, and the local CS office couldn't help. I tried calling and asking them but they were unable to answer.

I'm thinking that at some point in this hearing, since I was served papers, that they're at least going to ask me if I object to intervention.

Ideally, I would like to ask if I can read a short letter. There will be a transciptionist there, and I feel like it would be a good idea to have it in a court transcript that I fear that the ex will deny me the status quo parenting time as soon as he knows that I will be seeking a modification of the CS amount.

Questions:

1) Should I just not say anything at the DOR hearing, or should I mention that I am concerned that ex will revert back to the schedule of the settlement agreement?

2) If my ex doesn't like where things are leading, can he ask DOR to drop the Motion?

3) Do you have any ideas of what the basic happenings of this hearing will be?

4) If the answer to question one is yes---to mention my concerns--- do you by chance have the time to read over what I have written? (I'd have to Email it to you due to the personal nature)

Thanks a million Soc,
FLMom

[socrateaser]

>Questions:
>
>1) Should I just not say anything at the DOR hearing, or
>should I mention that I am concerned that ex will revert back
>to the schedule of the settlement agreement?

What are the stated grounds for the intervention?

At the moment custody/parenting time are not "at issue" before the court. Hopefully, you can prove that you have been exercising substantially more parenting time than what is actually provided for in the order. If you can, then I would file a motion to modify your parenting plan and possibly custody, on grounds that the actual status quo is substantially (i.e., clearly and convincingly) different from that contained in the existing orders, and that it is in the child(ren)'s best interests that the status quo be maintained.

That puts all sorts of other issues on the table -- issues with which DOR is prohibited from being involved. You could then respond to the DOR motion that their intervention is premature, as the child(ren)'s interests are not at any particular risk, and it's a waste of judicial and state resources to involve them in the hearing.

I don't think that any of this will necessarily cause the court to deny the intervention motion, but, as I don't know the reason why DOR is getting involved, I can't really comment further.

>2) If my ex doesn't like where things are leading, can he ask
>DOR to drop the Motion?

He can withdraw his case. Legally, DOR does not have to stop its intervention, but, if neither parent is cooperating there's little point in DOR continuing to act.

>3) Do you have any ideas of what the basic happenings of this
>hearing will be?

DOR will state its reasons for the intervention, and you will have an opportunity to respond, and then the court will rule. I suspect that the hearing should require about 5 minutes max.
>
>4) If the answer to question one is yes---to mention my
>concerns--- do you by chance have the time to read over what I
>have written? (I'd have to Email it to you due to the personal
>nature)

Your concerns are irrelevant to the hearing because (1) you have not placed parenting or custody at issue, and (2) DOR doesn't involve itself in custody/parenting matters, so nothing that you would say about that subject would tend to prove or disprove a material fact necessary to the court's ultimate decision as to whether or not to permit intervention.

And, at the moment, without knowing the stated grounds for intervention, I can't even come up with an appropriate response.

But, this gets back to my original comments that fighting about intervention is largely a waste of time. More than likely, FL statutes provide standing for DOR to intervene on the most trivial grounds, i.e., because the state has a compelling interest in the welfare of its children, and that is all they really need.

I'm really curious as to what your attorneys said was the grounds for fighting intervention -- other than that it would be good for their business. Maybe there's something in FL law that I'm missing -- hopefully you received some insight from local counsel as to why they thought resisting intervention is so important.

[FLMom]

Thank you for your quick reply as always.

*What are the stated grounds for the intervention?*

That's just the thing. All I got served was a Motion to Intervene---it didn't say what the intervention was about, although I suspected it had to do with the six months of arrears.

I finally got through to the perpetually busy DOR CS hotline yesterday. I called to ask what to expect at the hearing. She wouldn't tell me what it was about, just asked me what I thought it was about and then confirmed that yes, it was the arrears.

I then asked her if that meant that DOR would be involved from now on, and she said yes. From my oldest child, I learned that the ex told her that he was taking me to court for the arrears and that it was "no big thing". This confirmed my belief that the ex has no clue that DOR is now involved for the long run.

DOR stated yesterday that yes, once they are involved that they represent me in seeking CS modification as much as they represent my ex in seeking the arrears. I will be provided assistance by DOR legal counsel.

Here I was trying not to rock the boat with my ex, and he stuck an outboard motor on it.



*That puts all sorts of other issues on the table -- issues with which DOR is prohibited from being involved.*

You are so right. As I've been putting my papers together and reading all I can find, I blurred the lines between CS and Custody. I almost have to keep a running list written down of the issues with some things on the CS page and some things on the Custody page.



*If my ex doesn't like where things are leading, can he ask
DOR to drop the Motion?

He can withdraw his case. Legally, DOR does not have to stop its intervention, but, if neither parent is cooperating there's little point in DOR continuing to act.*

And that's why I've decided to just nod, act contrite and OK the Motion at the DOR hearing. I don't want to spook the ex. If he had any idea what can of worms that he was opening he'd drop things on the spot.

I WANT DOR involved. Less out of pocket for me in filing the Modification of CS.

As far as reading the letter at the hearing, that goes back to me blurring the lines. What I was going to include in the letter should be the reasons in the Motion to Modify Custody and Visitation.


Here's my game plan:

1) Allow DOR to intervene.

2) Get all of my necessary paperwork in order.

3) Wait until after the hearing to intervene and the follow-up hearing to decide arrearages, interest owed and a payment plan, then file the Modification of Custody and Visitation.

(My thoughts are that this will a) Allow even more time to pass that I've had over the settlement order amount of overnights, and b) If he does then lower the amount of overnights, it'll look stinky to the judge.)

4) Get DOR assistance to file for the Modification of Child Support.



*I'm really curious as to what your attorneys said was the grounds for fighting intervention -- other than that it would be good for their business. Maybe there's something in FL law that I'm missing -- hopefully you received some insight from local counsel as to why they thought resisting intervention is so important.*

I got NO good reason from either atty. The old atty said just pay the ex the arrears and make it all go away. He's also always unavailable and busy. The second atty referred to them as the "monster". Of course they are, cause they're a bugger to fight.

I think my husband summed it up the best when I told him what you had said. Something to the effect of using their client's fears to line their pockets.

The appealate case law that I found more than supports what I'm thinking. What I've had according to the settlement agreement for visitation is already considered "substantial" and is grounds to deviate from CS guidelines. What I've entered into now with my overnights is "significant"---over 40%. I needed that difference to show a "significant change of circumstances", although I did find case law to show that you don't always need that "significant change" to substantiate a request of modification----custody yes, visitation, no.

While I'm writing, I had another issue come up that I'm wondering about. Ex started a new business last year. Per the kids he's making quite a bit doing this. This business is registered (I checked) and has a professional business license.

The items that he would use to run this business are things that he would need at his home anyway (lawn care), even though he did go out and buy a $3000 mower when his old one broke down.

Questions:

1) What do you think about my "game plan"?

2) Can he claim a business loss due to the cost of his equipment, or does the fact that he uses them in the upkeep of his own home negate that argument?

Thanks,
FLMom

[socrateaser]

>Questions:
>
>1) What do you think about my "game plan"?

It's fine, although, I think I would have sided with your original attorney who probably suggested that you pull out your credit card, take a cash advance and pay the arrears -- thereby rendering DOR's involvement unnecessary.

Also, if DOR obtains a judgment of arrears, it will show up on your credit report, and that will haunt your financial existence until seven years after the judgment is paid off. So, the interest you might pay on a credit card advance, may actually be less than the cost of borrowing increase over the next seven years, generated by a credit score in the 500s, rather than in the 700s.

Of course, if your credit is already lousy, then this doesn't matter, but I thought it worth mentioning.

>2) Can he claim a business loss due to the cost of his
>equipment, or does the fact that he uses them in the upkeep of
>his own home negate that argument?

It's a legitimate business deduction if it's actually being used to produce income. You must argue and prove that the deduction is either unreasonably large in view of the particular business income generated, or that the equipment is being put to substantial personal, rather than business use (which is an easier argument, especially if the business isn't making more than $3K per year).

Obviously, if he argues for the deduction, then that's an invitation for you to request an opportunity to examine his business records THOROUGHLY, so as to determine whether or not a real business is actually being conducted, or whether this is just a tax avoidance scheme.

Anyway, those is my thoughts for dis mornin!

[FLMom]

Thank you again, Soc.

*1) What do you think about my "game plan"?

It's fine, although, I think I would have sided with your original attorney who probably suggested that you pull out your credit card, take a cash advance and pay the arrears -- thereby rendering DOR's involvement unnecessary.*

Credit card? Cash advance? Oh you do make me giggle sometimes. Seriously though, the credit problem won't matter because mine isn't good anyway (other divorce issues, in a nutshell). Also, I followed your advice in the first post I sent weeks ago. You said you wouldn't always recommend rushing into paying in case I was to use the arrears as a bargaining chip.

The question about the business on the side is me getting way ahead of myself again. It's good to know what makes it legitimate and what doesn't----thank you.

Tomorrow is part one of this latest saga. Hopefully it'll only be about five minutes and we'll be out of there. I've decided to keep my mouth shut except quick yes and no's unless I'm pointedly asked a certain question.

Til the morrow!
FLMom

[FLMom]

Although we sat at the hearing for the Motion to Intervene for about two hours waiting for other cases to be heard and dealt with, our part took about 3.2 seconds.

There is a Motion to Intervene? Yes. Do you contest this? No.

That was it, with an apology from the Judge that we had to sit through everyone else for something so quick. I was glad we did though, because it gave me a chance to see what was coming up at the next hearing. That's when I'll have the opportunity to contest the arrears amount.

I'm in the process now of preparing for this and for the questions that I will be asking my ex during this hearing. In the past he has "fibbed" a tad, but when there was a possibility--even slight---of evidence, documentation or testimony that would refute what he said he has backpeddaled.

I would like to phrase a few questions a certain way, and wanted to get your advice.

Question:

1) Would it be permissable for me to phrase a question like this:

i.e. "Mr. X, would our children say that (insert specific question)?

Thanks,
FLMom

[socrateaser]

>Question:
>
>1) Would it be permissable for me to phrase a question like
>this:
>
>i.e. "Mr. X, would our children say that (insert specific
>question)?

The question is objectionable as improper opinion/speculation, as it is beyond the personal knowledge of the witness. If you want to know what your kids would say, then, generally, you must ask your kids.

Your counterargument would be that a parent is an "expert," on what his/her minor children would likely say in a particular situation, because the parent has vast experience observing their behavior and/or opinions in action, so the parent should be able to state an expert opinion.

However, the question revolves heavily around exactly what sort of speculative evidence is being introduced -- some may be quite a bit more speculative than another.

On balance, I think that the judge will permit very little lattitude with such a question, and it will likely be ruled out of order.