Child support - Voluntary impoverishment - New Spousal Income

[ScottK]

Can someone please help me find a legal case or reference to attaching the income of my ex's spouse.
She and I have 50/50 custody after a year long battle against false allegations of abuse where she was able to steal my child from me and have me incarcerated. I worked long hours (90-100/week) to pay for the lawyers necessary to beat these malicious allegations and earned a considerable amount. A year ago the Judge ordered custodial rights returned to me and for me to pay CS based on the amount I earned while I was fighting to regain custody of my child. Two months after getting the CS order my ex quit her $33,000.00/yr job to live off of child support and her new husbands income and stated that she would be seeking a higher order from me now that her income was diminished. She recently filed for that change. My income is reduced to less than half of the amount I was making before custody was restored to me as a direct result of having custody. Even being able to pay the amount set in the existing order is difficult with my household bills. Her husband agreed to support her while she pulls this stunt and his income is $90,000.00/ yr. I know that she is entitled to half of it.
How can I show this as Actual or Potential Income now that she has Voluntarily Impoverished herself?

I found this but am uncertain of the source:

The Ability of the Noncustodial Parent to Pay - The court will look at income from all sources when it decides on the amount of child support. Generally your ability to pay does not include calculations of bills and debts such as car payments, credit cards, etc. If the non-custodial parent marries again, the court will usually not look at the new spouse's income. However, there are some exceptions.

The court will consider a new spouse's income if one of the following occurs:
(1) The parent paying the child support claims that s/he is unable to pay because of debts.
 
(2) "Voluntary Impoverishment" - The court may look at a new spouse's income if the custodial parent claims that the parent who owes
the support has left a job voluntarily in order to avoid paying child support.

(3) There is a claim that the parent paying child support is hiding assets. [fn.13]

The Earning Capacity of the Custodial Parent - Both parents have the duty to support their children, not just the paying parent. The court will also look at the earnings of the custodial parent. In particular the court will look at the resources which are available to support the children. The court may also look at your capacity to earn more money. The court may also consider the income of a new spouse when determining child support levels.[fn.14]

The Other Responsibilities of the Parents - The court will also look at the other lawful responsibilities of both parents. For example, if the non custodial parent is paying child support from a previous marriage, the court will consider that obligation also. Necessities of life, such as rent and food will also be considered by the court. However, the court will not reduce child support payments to make it easier for you to pay discretionary obligations. For example, a parent cannot buy an expensive car instead of providing for his or her own children. [fn.15]

If anyone has any idea as to it's source I would really appreciate them letting me know.

[cinb85]

but in NJ, they don't take the income of the ex's spouse into consideration when computing child support.

I have the same problem that you do have, except I am the CP.  I have a decent job, but my ex doesn't work (lives off his girlfriend).  Because of this, they do input income, but it's very minimal.  Also because of this I have to pay a much larger portion of our daughter's medical bills (which I don't think is fair).   What state are you in?  Your state probably has a child support website with information on it about inputting income.

I know exactly how you feel, but unfortunately the courts don't really do much to help people like us out.

Good luck to you and your child!!!

[ScottK]

I'm in Maryland and the only time Spousal income is considerable is when the parent responsible for support voluntarily impoverishes themselves and lives off the income of the new spouse.
My problem is that so far in this state the only case laws I can find are where the non-custodial parent has voluntarily impoverished themselves in an attempt to get out of paying support. In my case we have 50/50 physical and legal custody and she has impoverished herself in an attempt to get a higher support award.

[Giggles]

and I do believe you can have her income set at what it was prior to her quitting her job.  She has the "potential" to make that amount but has voluntarily improverished herself.  Do you have documentation of her stating that was her reasoning?

http://www.dhr.state.md.us/csea/help.htm

Read paragraph (f) Potential income

[leon clugston]

The problem you are going to run into, is the legislation probally doesn't have the direct wording for a 50/50 custody, all legislation is directed around the non-custodial parent, this was so it would look like the state are complying w/ federal law. If you have a true 50/ 50 custody arraingment, with the physical custody of the child changing equaly then there cannot be child support imputed from one sole parent, there has been different theories attached to this, ie. one parent at some popint is abesnt  but it holds no validity under a common approach. However what you are pointint out to is a minnum requirement established upon the states from the feds, and for in which the states must have in effect, in there state plan.

[ScottK]

 If you have a true 50/ 50 custody arraingment,
>with the physical custody of the child changing equaly then
>there cannot be child support imputed from one sole parent,


 The reasoning for ordering CS with an equal 50/50 time split was that I made 65% of the income for the year calculated therefor, the judge reasoned, I was responsible for 65% of the expenses. I see it as state forced retroactive prostitution. Making me pay a tramp for booty I got 9 years ago. It sure isn't for my childs benefit.
  My child's mother and I were never married and the reason we split was because she started having an affair with one of the convicts the county sent to work at her jobsite. Her job was to supervise the inmate labor.
I now live in poverty so she can drive a new Town & Country, and go to Gold's Gym, the tanning salon, etc. In the past 3 years I have had to spend over $36,000 in legal fees ($17,000) and child support ($19,272). Until I was able to disprove her malicious lies, and get the criminal charges dropped, and then win back custody, I had to pay $660.00/ month for one child. Now after winning back 50/50 custody after a year long ordeal that finalized in 6-8 to 10 hour days before the Judge, I have to pay this greedy B $286.00/ month.  Now she quits her job to diminish her income and lives off of my money and her husbands income. No, I don't have any documentation of her statement about making me pay her more money. She learned well how to manipulate the system so that she never pays for anything and never leaves evidence.
 I might feel differently if she used my money for my child but she doesn't. She has a new child and he gets diapers, formula, clothes, toys, and her attention. My child is made to go play in the bedroom, or outside because she doesn't want to be annoyed. My child is told she can't afford the items that are wanted or needed. In school my child needed a simple $5.50 recorder to play in music class and she refused to get one. She went to the dollar store and bought this one piece orange toy for my child to use in class. My child was understandably embarrassed. The following week when my custody week began I got the needed instrument.  She has repeatedly violated court orders by hitting my child but there is no proof other than the child's word.  She often belittles me in front of my child and says hateful things like you're an as*%ole just like your father.
  The problem with this is that the judge in this case is opposed to having a child brought into court. After spending over 48 hours on our trial just a year ago the Judge is not happy to see us back. The X just denies that anything happened and tries to act like I am maliciously litigating.
  Her word was all they required to take my freedom for two days, and steal my child from me for a whole year. In this god forsaken state there is no recourse against what she did, and no way to undo it. My only hope is to find the case law that shows how I can prove she is not destitute as she claims. Show her for the greedy malicious pain in the Butt she is. Spousal income is calculatable when a person voluntarily impoverishes herself, I just have to find how.

[leon clugston]

there is 2 factors that the states dont want to discuss and that is the legal custody, in mine we both have joint legal(this creates a problem that no one wants to discuss) the other part is on a 50/50 shared, equal distribution of time is not covered under the federal side, nor did congress intend for the support to be applied to such situations(found a report on it, in simularity, but lost it) in one week there will be federal case entered in takeing all these applications to the test, w/ more, however i do not want to disclose all this yet, there has never been in a federal court a case w/ these kinds of implications brought forth, it will be enteresting, one thing to remember is agencys cannot operate w/out regulations, and courts are Agencies, since they always contend there bound under state and federal law, then you can tie them to the federal regulations and state plan requirements,(mandatory laws) and that is what screws these A......h....s decisions, there is mininum requirements, and stipulations that the states cannot enterpret, enterpretation is the second thing that screws people( since two people can interpret something differently, it stands as no law that can bind,there is federal court cases, that states if two people of common intelligence interprets something differently than it cannot have no effect of law, most state statutes are interpretive, (hardly beleivable, but true) and in many cases left to the discretion of the judge whp has a pecuinary enterest in every case in custody and support,( State plan and cooperative agreements ) section 3.1.
What State are you in? I might be able to help/

[wendl]

Go to the link below.  I posted one section about incomes below for you.

http://www.dhr.state.md.us/csea/help.htm#3

§12-204. Determination of child support obligation.

 
(a) Schedule to be used; division among parents; maintenance and alimony awards. - (1) The basic child support obligation shall be determined in accordance with the schedule of basic child support obligations in subsection (e) of this section. The basic child support obligation shall be divided between the parents in proportion to their adjusted actual incomes.

(2) (i) If one or both parents have made a request for alimony or maintenance in the proceeding in which a child support award is sought, the court shall decide the issue and amount of alimony or maintenance before determining the child support obligation under these guidelines.

(ii) If the court awards alimony or maintenance, the amount of alimony or maintenance awarded shall be considered actual income for the recipient of the alimony or maintenance and shall be subtracted from the income of the payor of the alimony or maintenance under §12-201 (d) (2) of this subtitle before the court determines the amount of a child support award.

(b) Voluntarily impoverished parent.-(1) Except as provided in paragraph (2) of this subsection if a parent is voluntarily impoverished, child support may be calculated based on a determination of potential income.

(2) A determination of potential income may not be made for a parent who:

(i) is unable to work because of a physical or mental disability; or

(ii) is caring for a child un der the age of 2 years for whom the parents are jointly and severally responsible.

(c) Income between amounts in schedule.-If a combined adjusted actual income amount falls between amounts shown in the schedule, the basic child support amount shall be extrapolated to the next higher amount.

(d)Income above schedule levels.-If the combined adjusted actual income exceeds the highest level specified in the schedule in subsection (e) of this section, the court may use its discretion in setting the amount of child support.

(e) Basic child support obligation.-Schedule of basic child support obligations:

 

**These are my opinions, they are not legal advice**