Modifying Child Support

[rick_private]

Hello all,

I'm an active, ncp Dad with two elementary school age children. My ex is remarried and doesn't work.  My current child support obligation was set about 6 years ago, when my ex was working and had work-related daycare expenses.

The past two years my ex has agreed to sign an IRS Form 8332 and allow me to claim the children as dependents. This year she is refusing to sign the form.

Questions:

1. Given that my ex has no income herself, is the court likely to rule in my favor if I petition to be allowed to claim our children as dependents?

2. If I request a modification of my child support, is the court likely to impute an income to my ex (which would lower my obligation)? If so, would the court impute to her the minimum wage, or a higher wage based on her actual work history?

3. If my ex files a joint return with her husband, and claims the children as dependents, is her husband's income at all relevant in calculating child support?

Thanks for any guidance you can provide.  

[becky]

:-)

[rick_private]

Hello Becky,

I'm in NC. I also posted this to Socrateaser, who was kind enough to respond.

One additional note: In our current, 6 year old cs order, the court found that my ex was making $3000 / month. She left that job voluntarily after she remarried. I wonder if that finding is sufficient for the court to impute to her the same income now?

[becky]

1. Given that my ex has no income herself, is the court likely to rule in my favor if I petition to be allowed to claim our children as dependents?

Based on NC CS guidelines (see this link https://nddhacts01.dhhs.state.nc.us/home.jsp?TargetScreen=WorkSheet.jsp), it is presumed that the CP will claim the children as dependents, even if they do not work.  A NCP can petition the court to claim the children as dependents if the CP doesn't work or would receive no financial gain by claiming the children as dependents.  If the court allows the NCP to claim the children as tax exemptions, which is a deviation from standard guideline support, the judge can order the monthly CS to be higher than what it would be if the NCP didn't claim the children.  As Soc stated, you do have a good chance of getting a judge to award you the exemptions, if not both, then one and may not raise your CS obligation.

2. If I request a modification of my child support, is the court likely to impute an income to my ex (which would lower my obligation)? If so, would the court impute to her the minimum wage, or a higher wage based on her actual work history?

A judge can impute her income to a salary based on her work history.  Personally, if she was making $30K six years ago, she should still have that potential (or close to that amount unless it was in the textile, furniture, or tobacco industry, then it's debatable), but a judge only has to impute to min. wage.

3. If my ex files a joint return with her husband, and claims the children as dependents, is her husband's income at all relevant in calculating child support?

Not at all.  In fact, you may not win your petition to a be allowed to claim the children as dependents if her spouse can claim them, as it is presumed that the CP will claim the children and CP and children are part of spouse's household, therefore it is to their advantage to use the exemptions.  BTDT.

[jilly]

http://www.nccourts.org/Forms/Documents/981.pdf

[becky]

FYI.... the links I've posted do have the updated CS guidelines for NC as links.  When you posted this weeks ago, I checked to see if either DH's or my CS would increase with the new guidelines, and they do.