Modifying Child Support

[rick_private]

Hello Soc,

I'm an ncp Dad of an 8 and 10 year old in NC. My child support obligation was last calculated 6 years ago, when my ex worked and had daycare expenses. Within the last three years she has remarried and stopped working.

For the last two years my ex has signed a Form 8332, allowing me to claim our children as dependents. She refuses to do so for 2006, even though she had no wage income. She may be intending to file a joint return with her high-earning husband.

Questions:

1. Given that my ex has no taxable income, am I likely to be awarded the right to claim our children as dependents, if I petition the court for this?

2. If I file to modify child support, is the court likely to impute income to my ex?  If so, will the court impute minimum wage income, or a higher income based on her previous work history?

3. Will the court simultaneously impute income to my ex AND allow me to claim our children as dependents?

4. If the court imputes 40 hour per week income, does it simultaneously impute work-related child care expenses (ie, the costs for after school care?)

5.  If my ex and her husband file a joint return, and claim our children as dependents, is their combined marital income used in calculating child support? This would significantly lower my obligation.

Many thanks, Soc.

[socrateaser]

>Questions:
>
>1. Given that my ex has no taxable income, am I likely to be
>awarded the right to claim our children as dependents, if I
>petition the court for this?

Yes, I think you have a good argument here.

>
>2. If I file to modify child support, is the court likely to
>impute income to my ex?  If so, will the court impute minimum
>wage income, or a higher income based on her previous work
>history?

The court will only impute income if you raise earning capacity as a an issue and prove the elements, i.e.: (1) talent and ability to work; (2) availability of commensurate work in the locale, and; (3) unwillingness to work.

Income will be imputed at minimum wage unless you prove some higher earning capacity.

>3. Will the court simultaneously impute income to my ex AND
>allow me to claim our children as dependents?

Depends on the jurisdiction. In CA, for example tax effects are figured into the support calculation, via a sophisticated computer model, so it doesn't matter which parent receives the exemptions, because the net effect is the same amount of child support.

In other jurisdictions, where manual tables are used, judges have more discretion, or the right to the exemption is mandated by statute. You'll have to check the laws that apply to your orders.

>4. If the court imputes 40 hour per week income, does it
>simultaneously impute work-related child care expenses (ie,
>the costs for after school care?)

Depends on whether a party raises it as an issue and proves the cost of child care for the locale. So, maybe yes, maybe no.

>5.  If my ex and her husband file a joint return, and claim
>our children as dependents, is their combined marital income
>used in calculating child support? This would significantly
>lower my obligation.

You wish, huh? However, only the tax effect is considered, and except for CA, you'll have to do all the figuring and proving that you should be entitled to a break.