Complaint for Modification/ child support and college tuition

[lookingforanswers]

Will take place in Massachusetts, state in which CP and children reside.

Original divorce decree is dated 1994, however there was a modification in 1999 where my the amount of my order to pay child support was increased.  We also went back to court in 2002 over contempts on both sides and modified existing order  spell out visitation.  

  I am self-employed and do have my business and personal income taxes prepared by a CPA.  I believe that we will most likely be going to trial due to the fact that my income has not increased but has decreased.  

1.  Why is the attorney using the 1994 date instead of the most recent modification date?

2.  Will you please give me a quick overview of what it is like to go to trial in a case such as this?

Many thanks

[socrateaser]

>1.  Why is the attorney using the 1994 date instead of the
>most recent modification date?

I don't know. Maybe he wants to show that you have earned more in the past and that you may be trying to hide income, or you are deliberately underemploying yourself.

I would object to the relevancy of 10 year old evidence to show current income or earning capacity, because evidence must generally be relevant in time, place and occurrance before it can be used to prove or disprove a material fact at issue in the case, and old P&L data is not relevant to show this. Opposing counsel could argue that the evidence is being introduced to show motive or intent to misrepresent or intentionally underemploy oneself, but he/she would still need proof that your actual current income is different or suspect with something else, like proof of personal expenses that substantially exceed your stated net income.

>2.  Will you please give me a quick overview of what it is
>like to go to trial in a case such as this?

Child support hearings are generally summary in nature with no testimony taken other than as introduced directly by the attorneys, or parties if unrepresented. Usually, the judge reads whatever affidavits and documentary evidence is provided with the written motion and response and makes a snap decision.

The only time that this doesn't happen is if the judge believes that there's some funny business going on, or a party alleges that there is something not credible about the documentary evidence submitted. Then, the judge may order more discovery and a second hearing.

So, if your accounts are prepared by a third party and the numbers appear reasonable, they will likely not be seriously questioned by the court.

For self-employed small businesses, the court will look for significant phantom income in the form of depreciation of property that can be used for both business and personal, such as a luxury car or a truck that is unusually expensive for a person's trade use, or, a home office deduction that produces a large deduction through depreciation and interest expense.

Other than that, the court will probably go with your numbers, unless the other party shows evidence that the average person in your trade earns significantly more for the amount of work performed, and then watch out, because if the judge believes that you are hiding income, you may be ordered to produce all of your checking and credit card accounts (which may have already happend during discovery), and if you spend substantially more than you earn, then that will be the smoking gun, and the court will likely go with imputing your income based on your expenses rather than your net income figures.