Child Support Questions

[holly123]

Hi,

On our custody order, Judge put, "child support on reserve".   We have joint phys and legal. I have son 9 mos out of the year, father 3 w/ every other w/e and one night a week, which switches during whose time it is. We alternate holidays.

Dad ordered to provide medical, as he had a good 100% paid plan. He lost job. Went on state medical.  They went after me as NCP. I had that changed, as I have him majority. Son went on my medical. Dad agreed to pay son's portion, but then now only pays what he decided is right-- 50% of the son's portion- and he pays sporadically by M.O. via mail.  This is every pp deduction for me- he claims if 3 pp/mos, no deductions for third (as they dont always fall twice/month-- its just e/o thursday.

He also dosent hel w/ day care. Son was in after school program, dad then need the one day week/e/o friday. I paid for a time, then said he had to contribute. Instead of helping me, he went to director of daycare and had her figure out (it goes by monthly charge) the 30-6 for him, so he pays 20 something, and I pay over a hundred a month.  Same w/ school lunches.

His philosophy is 'when he is w/ me I pay, w/ you, youpay.

He is married since son, w/ two daughters. His wife (now) works (since he lost that jobb).

The medical CS worker was working w/ me to establish CS, but she took long time trying to find his income. By that time, 9 or more months (as his temp job was technically an out of state company), I got cold feet w/ his veiled threats, ect.

1. why does CS need to 'establish his income'. Cant he go to court and provide that himself? It is a real waste of time...

2. Would this be a modification (and thus easier) for me, or do I have to start from scratch?

3. How do the new laws in MN (in effect jan '07) affect mysituation, before prob the velntio thing.

4. Any other advice you can give me? I am/remain horribly confused.

Thanks.

[socrateaser]

>1. why does CS need to 'establish his income'. Cant he go to
>court and provide that himself? It is a real waste of time...

The court can only award support based upon a parent's actual income or earning capacity. Actual income means income from all sources. With a parent who is basically flying low on the radar, establishing income is pretty much a matter of examining all available records to try to determine whether the parent spends consistent with claimed income. If not, then the court may decide that the parent is hiding income.

If you want to prove that the parent has enhanced earning capacity and is intentionally under employing him/herself, then you must prove the parent's talent and ability to work (usuallly done with a vocational evaluator), the existence of work in the market where that parent resides, and that the parent is unwilling to work. If you prove all three elements, then the court will impute child support income based on that parents ability to earn (earning capacity).

The problem is that all of these alternative methods are very time consuming and expensive effort for the state to prove -- it's easier to simply look at the pay stubs and use that number to calculate support -- and them move on to the next case.

The state doesn't really care about you or your kids, in my view. The job is to collect as much federal matching dollars as possible, and the best way to do this is to maximize the number of parents who are paying through the state collection unit. There's no percentage in going after individual parents and trying to prove enhanced actual income or earning capacity, because proving the case is expensive, and usually requires an attorney, which means that the state must hire attorneys, and that increases the cost of doing business.

If you think that the parent has considerable real income and it is not being reported, then you may want to hire an attorney to represent you, because you will be able to recoup your costs from the extra support you will receive. Otherwise, you are probably wasting your time, because you're not gonna get much more money and you'll be throwing good money after bad.

Sometimes, if you give the obligor parent enough rope, he/she will slip up and you will be able to more easily discover his/her actual income, when he/she doesn't believe that you're paying attention anymore.

>2. Would this be a modification (and thus easier) for me, or
>do I have to start from scratch?

If you had a final support order put in place after your final custody order, then that final support order would have terminated the reserve status on your custody order. Which means that any new order must be based on an motion for an order to show cause. If your current support order is considered temporary, then the reserve remains in force and you are entitled to your first final order, which means that this is not a modification, it's an establishment. This allows the court to apply retroactive modificaiton of support back to the time that you originally requested child support, and could create a substantial arrears against the obligor parent (sometimes, an amount great enough to create felony criminal charges, which substantially increases your leverage to get paid).

Otherwise, if it's a standard mod, then you can only get retroactive support increases back to the date when you file for the modification (per federal law).

>3. How do the new laws in MN (in effect jan '07) affect
>mysituation, before prob the velntio thing.

I don't know MN law, specifics. Sorry.

>4. Any other advice you can give me? I am/remain horribly
>confused.

Keep asking questions.

[holly123]

Hi, thanks for the response.

What I meant by previous question #1 is: CS took months to FIND dad's employr (they eventually found it- a temp agency based in Texas-- but via an office here, for work here.). This took them over 6-9 mos. Somewhere in there. Why can't they just set up a court date, and serve dad w/ papers to fill out? (instead of wasting this time. Now it will take additional time again...

2.  I am legally-challenged, so understanding some of this stuff is hard for me.  We never had a any CS determination at all. ever.  It was 'put on reserve'. That was 6+ years ago.  I never pursued, but for the bingled attempt, aborted, above.  So, then, this is an establishment? For which no arrears apply, correct?

3. Medical.  Dad ordered to provide. If he lost job, and has no job w/ medical, and I do, does this automatically get switched to me? How does payment of costs occur? Are they split?

4.  He went through 'retraining- and got 9 month diploma in trade. He now gets temp jobs w/ no medical. Is this underemployment?  

Thanks again.

[holly123]

Hi, just found this article in a search. So, from this article, I would be establishing CS w/ a 'reserve order'?

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=mn&vol=apppub%5C0505%5Copa041526-0503&invol=1

[socrateaser]

>Hi, thanks for the response.
>
>What I meant by previous question #1 is: CS took months to
>FIND dad's employr (they eventually found it- a temp agency
>based in Texas-- but via an office here, for work here.). This
>took them over 6-9 mos. Somewhere in there. Why can't they
>just set up a court date, and serve dad w/ papers to fill out?
>(instead of wasting this time. Now it will take additional
>time again...

I don't know. Seriously.

>2.  I am legally-challenged, so understanding some of this
>stuff is hard for me.  We never had a any CS determination at
>all. ever.  It was 'put on reserve'. That was 6+ years ago.  I
>never pursued, but for the bingled attempt, aborted, above.
>So, then, this is an establishment? For which no arrears
>apply, correct?

Incorrect. It's an establishment and the court has authority to set support retroactive to the original date of filing for support (and in some cases, even eariler than that date). So, you could get a very large award of arrears. If I were dad's lawyer, I would have long ago tried to nail down a final order to eliminate this possibility. Bad move for dad.

>3. Medical.  Dad ordered to provide. If he lost job, and has
>no job w/ medical, and I do, does this automatically get
>switched to me? How does payment of costs occur? Are they
>split?

No. It's according to the court orders. If there isn't any court order, then Dad's not obligated except as to the amount that the court deems equitable (typically 50/50 for unreimbursed healthcare costs, assuming you have receipts for out of pocket costs paid on behalf of child).

>4.  He went through 'retraining- and got 9 month diploma in
>trade. He now gets temp jobs w/ no medical. Is this
>underemployment?  

If he is qualified for a higher paying job in his locale, and such a job exists, then he would probably be underemployed if he's not working the job for which he's qualified.

[socrateaser]

>Hi, just found this article in a search. So, from this
>article, I would be establishing CS w/ a 'reserve order'?
>
>http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=mn&vol=apppub%5C0505%5Copa041526-0503&invol=1

Quoting your case cite: "...as a general rule, (a) if there has been an affirmative setting of a support amount, including the affirmative setting of support at an amount of zero, any subsequent change of the support obligation is a modification; and (b) if there has been only a reservation of support, a later setting of a support obligation is an initial setting of support."

This indicates that if your original custody order did not order any child support, but merely reserved judgment, then your next order would be an establishment, whereas, if there was an "affirmative" setting of support in some amount, even zero, then the next order would be a modification.

I can't really tell what the court would find based on your posted facts. I would need to read the exact text of whatever support order currently exists, even if it's HACKded in the custody order.

[holly123]

Ok,

1. OK so if the next 'order' were to be an establishment, there would be no arrears, because it has never been established, right? It would go from the date of case filing for establishment, or order date of establishemnt...not from date of reserve order...???  (In which case I am looking at almost a year to get to court if I start today- here in MN--unless I have atty, whereby it would be 6 months)

2.  Order on final custody order is very simple, reads "child support on reserve"

3. Medical support was established, w/ father being ordered to provide via his employer. However he lost his job w/ benefits.  So I have been providing. So it is usually split 50/50?

4.  day care expenses. What are the 'usual' guidelines surroung this? My son attends after school program, and dad dosent contribute.

THANKS THANKS THANKS

[socrateaser]

>1. OK so if the next 'order' were to be an establishment,
>there would be no arrears, because it has never been
>established, right? It would go from the date of case filing
>for establishment, or order date of establishemnt...not from
>date of reserve order...???  (In which case I am looking at
>almost a year to get to court if I start today- here in
>MN--unless I have atty, whereby it would be 6 months)

No, you have it backwards. Federal law provides that no child support order may be made retroactive prior to the date when the motion to modify is filed. This is done to protect the obligor parent from a due process violation, because once an order is final, due process requires it to be not subject to change except for showing of fraud, illegality, duress, mistake or unfair surprise.

However, federal law is silent on the question of retroactivity for a first order (and "establishment"), because there's nothing final preceding it which might violate due process. So the states differ on their approach to these situations. MN, apparently has a rule to determine when a prior order is reserved or final, which I've already discussed, based on your case law citation.

I cannot discern whether or not your pending child support order would be ruled an establishment or a modification, without reading all of the existing orders. However, if it's an "establishment" then the court can order arrears. Whether the court "will" order arrears is a question for the judge's discretion, based on the facts, but I think in your case, it's likely that arrears would be ordered.

If it's a modification, then the court cannot order arrears, under any circumstance, because it's prohibited by federal law.

>
>2.  Order on final custody order is very simple, reads "child
>support on reserve"

Maybe, but your prior posts indicate that the obligor parent pays some regular amount. If so, then your next order will be a modification. If not, then it would be an establishment, and you'll probably get arrears ordered. How much, I have no clue.

>
>3. Medical support was established, w/ father being ordered to
>provide via his employer. However he lost his job w/ benefits.
> So I have been providing. So it is usually split 50/50?

Yes.

>4.  day care expenses. What are the 'usual' guidelines
>surroung this? My son attends after school program, and dad
>dosent contribute.

If daycare is necessary so that the obligee parent can be employed (work), or needs job training (which includes college education), then daycare may be ordered in addition to the support guideline. The amount is usually apportioned based on both parent's respective incomes, but it's pretty much up to the judge.

Federal law prohibits an employer from garnishing more than 50% of an obligor's net disposible income, if that obligor is supporting a subsequent spouse or dependent, except where in arrears for more than 12 weeks and court ordered to pay a greater amount. So, even if you receive an order for more than 50% of your ex's income, you can't actually obtain it, although it would pile up as arrears that would have to be paid eventually.

[holly123]

Thanks so much!!

Just a clarification: Dad has sent some money just this year (his decision when/how much- less that 50%) of my medical insurance expenses for child, being that he is on my medical from work. He has never paid anything in CS.