CS modification

[DK]

State of Florida.  

February 2003 DH received 50/50 physical and legal custody.  Primary residence is BM.  The child support was changed at that time also.  At the time BM was in college and worked part time so $450.00 was imputed to her monthly income.  At the time DH lived in a home his parents owned so $750.00 was imputed to his monthly income (judge state he saved this much a month by not having mortgage or rent)

In March this year BM started working full time.  About a year ago DH's parents gave the home we live in to him legally, but we give the parents 300.00 per month.

1.  Will BM having a full time job be considered change of circumstances to get a new CS modification?

2.  Will DH now owning the home be grounds to take off the imputed $750.00 a month for saving on rent?  Especially now that he pays his parents $300.00 per month.

3.  We have found all the forms to fill out for CS modification in our state.  How hard it to do a CS modification on our own?

Thanks.

[socrateaser]

>1.  Will BM having a full time job be considered change of
>circumstances to get a new CS modification?

A change in income that has a +-5% affect on the guideline support calculation is usually suficient to trigger the necessary change in circumstances.

>
>2.  Will DH now owning the home be grounds to take off the
>imputed $750.00 a month for saving on rent?  Especially now
>that he pays his parents $300.00 per month.

Owning the home could be viewed as a windfall and actually cost you more support. I don't know what the legal agreement between you and your parents is, but if it is a land sales contract, whereby you will receive the deed after making X number of monthly payments for $Y, then that would be an additional expense, and yes this would give you grounds to move for a support modification.

However, if the court said that you were saving $750 in rent before you received the house, and now you are paying $300, the is a good counter argument that you are STILL saving the difference, i.e., $450 in rent.

Having said this, it is unclear to me that the court had the authority to impute income to you based on your living arrangement. Child support is SUPPOSED to be based on the income or earning capacity of a parent, not their relative ability to save rent money by residing with a parent. I think that this order should have been appealed as an abuse of judical discretion.

>
>3.  We have found all the forms to fill out for CS
>modification in our state.  How hard it to do a CS
>modification on our own?

Not hard at all as long as you're not arguing some legal theory.

[DK]

We did a quit claim deed, so DH and I own the home.  We send Dh's parents $300.00 a month per verbal agreement.  

Does this help?

(We figured out CS modification with $450.00 and the difference is at least $65.00 a month.  Dh pays $365.00 now, so that is well over a 5% difference)

Thanks.

[socrateaser]

The court will ask to see if there is a note and a security agreement securing your payments, and recorded with the county. If there isn't, the court will probably treat your payments as a sham transaction between you and your parents.

[DK]

Ok...

1.  House is quit claim deeded to DH and me (new wife).

2.  We did sign a promisarry note May 1, 2003.  We have copy of this and Dh's parents have copy.  No lawyer, no notary.  But nothing filed with county.  Will this count?  Or can we file it with the county now? Or is it too late?

Thanks Again,  DK

[socrateaser]

>Ok...
>
>1.  House is quit claim deeded to DH and me (new wife).

This is not a question, so I have no comment.

>
>2.  We did sign a promisarry note May 1, 2003.  We have copy
>of this and Dh's parents have copy.  No lawyer, no notary.
>But nothing filed with county.  Will this count?  Or can we
>file it with the county now? Or is it too late?

In a real arms length transaction, the lender, in this case your parents, seeks to secure their loan by obtaining a trust deed note or other security agreement from the borrower, in this case you.

Such security is of little value unless it is filed with the county recorder, because you could sell to a third party, and your parents would have no right to obtain their loan balance from the sales proceeds of the real property.

In short, if you executed a note in favor of your parents for some amount and the payments on that loan are $300.00 per month, then the loan is unsecured. Thus, the quitclaim on the house is either a GIFT to you of the fair market value of the property (which, btw, carries with it, a federal/state tax liability to your parents for any amount in excess of $11,000), or your parents have entrusted the property to you, on the intention that it be returned to them upon some future condition, or you received the property as consideration for some benefit to your parents (in which case YOU have a federal/state tax liability for the ENTIRE fair market value of the property).

There may be some other legal contrivances that I could conjure up, but the bottom line is that this house deal is a net benefit to you and not an expense.

The $300 is unsecured, and I can practically guarantee that the court will view it as a sham, because NO reasonable person gives a home away to a person and then simultaneously offers that same person unsecured loan for a substantial amount of money.

If you record your note with the county and the note is property written to secure the $300 per month payments in favor of your parents, then you might have an argument, although if I were opposing you, I would certainly raise the question of why you are only now recording this note.

If your opponent is not represented by an attorney or the state, then you may get away with it, depending on whether the court feels like calling BS on you. But, if you're opposed by an attorney, and that attorney has half a brain, you're gonna end up no better, and perhaps worse off than you already are.