CS Modification/Ex on Unemployment, Many Questions!

[RMP]

Thank you for the opportunity to post here!  You come highly recommended.  Being pro se has beaten me up over the years but I've been told I "need an attorney, but I don't really need an attorney", just someone to help me to not be pushed around.

I've been divorced since 2000, 3 daughters ages 14, 12, 9, 50/50 custody.  My ex has paid support since he makes/made about 2/3 more than I do.  Everything has been split 70/30 in our support orders, but realistically I pay more like 80% of the girls' expenses and keep a spreadsheet to track it.  We live in Colorado.

He was informed in July 2006 that his company would be laying him off in September.  He had severance pay for 8 weeks and now that it has run out he is filing unemployment this week, per the letter from his attorney.  During the severance pay period he has spent his time buying a boat, motors for his Jeep (toy), trips out of state, hunting trips, four wheeling trips, and generally not actively looking for work.

I've heard that he is trying to get into the State Trooper Cadet program which requires testing and takes a while to start, maybe January before he would be earning money while attending the training.

My ex approached me recently to take over our daughter's $200 violin payment and partial summer camp payment, to which I agreed.  He also bought our other daughter a $900 saxophone this summer and asked that I pay him 1/2 the cost in cash. I said I would go in on it with him before I knew how expensive it was, but I sucked it up and paid anyway. A few times we agreed he would pay reduced support to me because I couldn't afford the large amounts up front, or I would cut him a check or pay cash.

This week I received a Stipulation his attorney wants me to sign, where I will be paying him support.  I'm guessing there is probably no way to get around that.  She has already filed a Motion and Hearing request as well, to "preserve retroactive modification" in antipation of my reluctance to respond to the Stipulation request.

The Stipulation does not include proof of what his wife is now paying for the children's healh insurance or my Ex's new income.  He was the one ordered to cover their insurance costs.  It lists my salary as $400 more/month than I make.  In July I went from being a part-time work at home mom (had a baby in '05) to a 24-hour a week hospital job plus kept my work at home job.  

The Stipulation states that if I agree and sign it, they will date it to commence December 1st.  If I don't agree, it will commence retroactively to the date they filed a Motion--November 12th.  If it goes to hearing, they are also asking the court to redetermine each parties pro-rata share of extracurricular activities and extraordinary expenses.

1.  Is it smart to respond to the Stipulation as an attempt to compromise and show effort, and ask for proof of health insurance costs,  proof of his unemployment compensation, and for an adjustment to my income now that I am no longer taking a "voluntary deduction" for having my baby last year?

2.  Is it within reason to ask in the Stipulation to consider in the calculation the $20/month my husband pays to keep the girls on his dental insurance so when orthodontics comes into the picture it covers the extraordinary expense?

3.  If it goes to hearing and I am pro se, does the court care whether he's been spending time and money doing everything but looking for work for over 2 months, or do they only consider him officially unemployed beginning when he starts collecting unemployment money this week?

4.  Would the court care if there is a chance he is only trying to change the order until January or so, and then he'll be earning money again anyway?  Would they ask him about that?

5.  If it goes to hearing, does the court care that I've been paying for everything my ex has asked of me, or is it better to just be quiet?

6.  Is it possible to ask for all current AND future support orders and payments to be made through Family Support Registry?

7.  Would the court frown upon me filing for a support modification as soon as he is employed?  

8.  Can the attorney somewhat threaten me that if I don't Stipulate I will have to pay support as of Nov 12th, but if I do Stipulate they will let me start paying in December?  

9.  Should I forget trying to compromise with the Stipulation and let it go to hearing since it's already been filed anyway?  

10.  What do I need to anticipate will happen regarding this whole pro-rata share business if it goes to hearing?  

 

[socrateaser]

>1.  Is it smart to respond to the Stipulation as an attempt to
>compromise and show effort, and ask for proof of health
>insurance costs,  proof of his unemployment compensation, and
>for an adjustment to my income now that I am no longer taking
>a "voluntary deduction" for having my baby last year?

Always better to settle if you can settle, because you are in control of what you get, whereas when the judge decides, you don't know what you will get until after you get it (and sometimes, you get it where the sun don't shine).

>
>2.  Is it within reason to ask in the Stipulation to consider
>in the calculation the $20/month my husband pays to keep the
>girls on his dental insurance so when orthodontics comes into
>the picture it covers the extraordinary expense?

Sure.

>
>3.  If it goes to hearing and I am pro se, does the court care
>whether he's been spending time and money doing everything but
>looking for work for over 2 months, or do they only consider
>him officially unemployed beginning when he starts collecting
>unemployment money this week?

The court presumes that everyone is capable of earning minimum wage for 40 hours per week, if they are physically healthy, and that is the amount the ocurt will use on his side of the calculation, UNLESS you prove that he has superior earning capacity.

Three elements of Earning Capacity are: (1) talent and ability to work; (2) availability of work comensurate with that talent and ability in the present market, and; (3) willingness to work. Prove all three and the court will impute his income based on the market value of his earning capacity.

To do this, usually you would file a motion that the other party submit to a neutral vocational evalation, and that the expert evaluator report the person's earning capacity. This is expensive.

The alternative is if you know what he's capable of and you can testify to the work that he's done in the past or get him to admit to that work, then if you can find out from a job placement agency or some other source (e.g.. salary.com), what that sort of work is worth, and then check places like monster.com, hotjobs.com, etc., and match all that stuff up, and maybe you can make a case for earning capacity without an expert. It's not impossible, just easier with an expert witness.

I don't know how much money is at stake, you'll have to do the risk-benefit analysis. You can use this as leverage if you suggest that you will move for a vocational eval if you can't come to an agreement. One of the things that he should be agreeing to is to engage in a diligent and continuing job search, and that he will submit certain specific results of that search (number of interviews per week, who, where, when, etc.), and that if he does not, then the agreement is changed and you are entitled to reduce support based on what you agree on in the stip is his reasonable earning capacity (and thereby you avoid having to hire someone to set that amount, and simultaneously you establish the earning capacity by your agreement for any subsequent hearing).

Judges love it when parties inadvertantly agree to a fact that would otherwise be messy and expensive to prove. Saves so much time and gray matter.

>
>4.  Would the court care if there is a chance he is only
>trying to change the order until January or so, and then he'll
>be earning money again anyway?  Would they ask him about
>that?

You are your attorney and you are entitled to ask, argue and try to prove whatever you wish. The court will not "ask" anything on its own motion, as a general rule, because shows bias in favor of a party.

This ain't judge judy, so don't depend on the judge to save you -- because you'll be disappointed every time.

So, decide what case you want to prove and get your facts and law together and prove it.

Or, hire an attorney to do it for you.

>
>5.  If it goes to hearing, does the court care that I've been
>paying for everything my ex has asked of me, or is it better
>to just be quiet?

If you pay without a court order you are conveying a gift. That's nice but it has zero legal weight. As a new order is currently pending, the court can calculate support retroactively and give credit for payments which but for the lack of a new order would not have been paid. But, if I were you, I wouldn't pay for diddly, and I would use that as a means of expediting the settlement.

In other words, your position is: Let's meet and come to terms on all this issues immediately, because otherwise, we're going to court.

>6.  Is it possible to ask for all current AND future support
>orders and payments to be made through Family Support
>Registry?

It's usually mandatory, if the obligor parent is employed. So, yes.

>
>7.  Would the court frown upon me filing for a support
>modification as soon as he is employed?  

Support may be modified any time there is a material change in circumstances. Every state has different rules, but if the circumstances would change support by more than $50 per month, that would constitute a change in any jurisdiction (rule of thumb).

Courts don't frown. They hear complaints and rule on them. Sometimes badly, but that's still what they do.

>
>8.  Can the attorney somewhat threaten me that if I don't
>Stipulate I will have to pay support as of Nov 12th, but if I
>do Stipulate they will let me start paying in December?  

You mean is this sort of legalized extortion? Yes. It's legal for an attorney to ask the court to enforce/defend the client's rights, which may be superior to the settled terms, as a means of coercing settlement.

However, it's not legal to threaten some external action, such as: "If you don't settle, we will tell the court about you having an affair with your ex's father." That would be extortion, because it's not relevant to a support mod. Although it might be relevant to a custody mod (fitness to parent).

>
>9.  Should I forget trying to compromise with the Stipulation
>and let it go to hearing since it's already been filed anyway?

Dunno. Risk-benefit analysis. Nothing to lose by setting up a meeting and trying to negotiate.

>
>10.  What do I need to anticipate will happen regarding this
>whole pro-rata share business if it goes to hearing?  

You'll be ordered to carry all the health insurance if available at reasonable or no cost from your employer. Expenses beyond insurance will probably be split 50/50. Daycare costs associated with job training, searchy or actual employment could be put in your court. But, federal law prohibits the court from ordering you to pay more than 50-60% of your disposable net income, and most states have a low income hardship exception if the result of the court orders will place you below the national poverty limit.

Nevertheless, you could be subject to a larger support order than you're used to.

You need to emphasize that you understand that your ex's income can be imputed to earning capacity and that if you can't settle, that you will be asking the court to appoint a vocational evaluator, which naturally you will expect your ex to pay for half of the cost ($2,500, at least).

[RMP]

Thank you so much.  One blessing is that with each thing my ex and his attorney try, the more I get to learn about what I can and cannot do for future reference.

I can get health insurance for the girls through my work for about $40 more per month than his wife is paying.  It would decrease my CS obligation, and if he's not working anyway that makes more sense to me.  I've heard though that if the parent who is ordered to provide coverage has a spouse who can provide coverage, the courts consider that more acceptable for the CS worksheet than for the non-ordered parent to pay the health insurance.

1.  If this goes to hearing by chance, is it worth a shot to ask the court to change the original order so that I am obligated to supply their health insurance coverage?  Or is that considered an unrealted topic to the CS modification at hand?  I guess I would have nothing to lose either way and am probably answering my own question.  :)

[socrateaser]

>Thank you so much.  One blessing is that with each thing my
>ex and his attorney try, the more I get to learn about what I
>can and cannot do for future reference.
>
>I can get health insurance for the girls through my work for
>about $40 more per month than his wife is paying.  It would
>decrease my CS obligation, and if he's not working anyway that
>makes more sense to me.  I've heard though that if the parent
>who is ordered to provide coverage has a spouse who can
>provide coverage, the courts consider that more acceptable for
>the CS worksheet than for the non-ordered parent to pay the
>health insurance.

I doubt what you've heard is anything close to a rule of law.

>
>1.  If this goes to hearing by chance, is it worth a shot to
>ask the court to change the original order so that I am
>obligated to supply their health insurance coverage?  Or is
>that considered an unrealted topic to the CS modification at
>hand?  I guess I would have nothing to lose either way and am
>probably answering my own question.  :)

This is a fairly trivial request -- I wouldn't worry about making it.