Modification of foreign order; Imputed income

[gravitas]

Hi all,

I am just about to start an uncontested divorce with my wife, who lives in Eastern Europe with our child.  We agree on everything and we'll sign paperwork soon, we have lawyers involved etc.  In her country they don't have "imputed income", so if my income fluctuates I feel I'll get more fair treatment by the court.  However I'm concerned about what happens if she moves to the USA (she's a dual citizen).

I read the text of the UIFSA very carefully and have some questions:

1.  If she and the child move to the USA, she can file for a modification even if there is no particular reason for the modification, can't she?  Next, via modification can she get the US court to take jurisdiction and overrule the original support order from the foreign court?  (In this scenario I would also be living in the USA)

2.  If the US court takes exclusive jurisdiction as above, granting a modification, then the original foreign support order would no longer be applicable.  In this case I would be subject to the imputed income rules imposed by US courts.  Correct?

3.  This particular country's court says you have to pay child support until age 27 (!)  to help with college.  According to UIFSA, the original duration won't change even if a US court changes the amount.  So I'm concerned I will pay a US percentage (and deal with imputed income) until she is 27, that's one way this could possibly go.

4.  The country in question is not a Hague signatory, nor do they have a bilateral support agreement with the US.  The UIFSA recognizes a "state" to mean "country" if that country has an agreement with the US, but otherwise not. Therefore it seems possible that the US courts won't recognize the original foreign support order regardless.  So she could turn around and file for a new support order at any moment in US court even while living abroad with the child, unless I'm mistaken.  Any thoughts?

5.  Let's say I make an agreement with her in the foreign court to pay a certain fixed amount, and I pay it for the next several years.  This is a likely scenario.  Later, can she move to the US and tell the US court that I never paid, or that the amount I paid was too low all those years, even though she agreed to it?  (There is some specific wording required for waiving minimum child support guidelines in US states, but it's not required wording in the country in question, however I'm concerned about future scenarios where I could become liable for years of support arrearages which I had already paid in full.)

It seems like there's no way out of imputed income.  I really want to switch careers in the coming years, but I won't be able to earn the same amount every year consistently.  I really hate that judges in the US can practically force me to continue my current career even if it makes me miserable, for 2 decades or more.  Help!

Thanks for any thoughts and assistance!

[MixedBag]

Hi all,

I am just about to start an uncontested divorce with my wife, who lives in Eastern Europe with our child.  We agree on everything and we'll sign paperwork soon, we have lawyers involved etc.  In her country they don't have "imputed income", so if my income fluctuates I feel I'll get more fair treatment by the court.  However I'm concerned about what happens if she moves to the USA (she's a dual citizen).

I read the text of the UIFSA very carefully and have some questions:

1.  If she and the child move to the USA, she can file for a modification even if there is no particular reason for the modification, can't she?  Next, via modification can she get the US court to take jurisdiction and overrule the original support order from the foreign court?  (In this scenario I would also be living in the USA)

I'm guessing original jurisdiction will be the court in Eastern Europe and that court will set Child Support? 

If you two were both in the US, and she moved, then the answer should be that the new state can not take over jurisdiction as long as you are still in the original state.  HOWEVER, there are folks who have participated here that have had other experiences.  So I say that with a SHOULD.   My original divorce was also foreign (British) and when we both left and moved to the US, years later, I had no problem registering it in the state that I now lived in with our children.   

Modification of CS -- first -- none of us are attorney's here....and after participating here for way too many years, my guess is that wherever she moves to will have criteria called "Significant Change in Circumstances" in order to adjust CS.  Other courts might just do an automatic review when she registers the foreign decree as a result of the move.  Each state is going to have its own definition of what that might be.  For example, if the new calculation is more than 10% different that the old amount, then my state will work to get CS Updated.

If you stay behind overseas.....make sure that potential travel is agreed upon in the upcoming order down to very nitty gritty details.  And I mean detailed. 

2.  If the US court takes exclusive jurisdiction as above, granting a modification, then the original foreign support order would no longer be applicable.  In this case I would be subject to the imputed income rules imposed by US courts.  Correct?

Yes, and no.  First she can't (or rather shouldn't) be able to come to the US and get the material side of the divorce altered in any way.  So the original order is binding in that fact.  The US court would assume jurisdiction over matters concerning the child (custody and child support).

CS calculations between two different states here in the US again has happened different ways to different people.  For me....I moved to State A.  EX moved to State B.  I filed for updating the CS amount.  State A contacted State B and said "do the calculations according to where EX lives" -- other folks had their filing state (A in my case) do the calculations.  BUT there's also the philosophy that the CP can't get away with moving to a "high cost of living" state in order to get more CS when the NCP is still in the original jurisdiction where the wages are lower.

3.  This particular country's court says you have to pay child support until age 27 (!)  to help with college.  According to UIFSA, the original duration won't change even if a US court changes the amount.  So I'm concerned I will pay a US percentage (and deal with imputed income) until she is 27, that's one way this could possibly go.

Age of Majority Support (or support through college) is also possible here in the US in many states.  And there are other states who won't address it.  Alabama is an age of majority state -- sort of.  My original decree (I'll go back to that because it is foreign -- British) said support through Seconday Education.  So what does that mean?  In England, that was the equivilant of high school.  The CS folks in my office in Alabama said that the original definition of emancipation is BINDING.  So, I could not say "Hey, we now live in Alabama, pay up through college. 

In addition -- forgot the case name -- Alabama has since struck down (geez I hope I get this right) age of majority support.  But it also won't go back and amend previous orders that have it in there -- it's more of a from this point forward.  Another big question becomes "How is age of majority support calculated?  Does the child have to make satisfactory progress in college?  Can I demand to see grades?"  food for thought -- that I'd research and do my best to get spelled out in the order.  Once the child turns of adult age, the CHILD has to release information like that -- and if they flunked and see their money disappearing, they're gonna resist telling you their bad news -- which emancipates them.

4.  The country in question is not a Hague signatory, nor do they have a bilateral support agreement with the US.  The UIFSA recognizes a "state" to mean "country" if that country has an agreement with the US, but otherwise not. Therefore it seems possible that the US courts won't recognize the original foreign support order regardless.  So she could turn around and file for a new support order at any moment in US court even while living abroad with the child, unless I'm mistaken.  Any thoughts?

Oh boy.....I think the answer to that is no.  You have to be living and establish residency for 6 months before being able to file a foreign decree.  And foreign is anything outside of the jurisdiction where you live -- like even from another state when it's a state to state move.  So she can't live abroad and file in the US.

5.  Let's say I make an agreement with her in the foreign court to pay a certain fixed amount, and I pay it for the next several years.  This is a likely scenario.  Later, can she move to the US and tell the US court that I never paid, or that the amount I paid was too low all those years, even though she agreed to it?  (There is some specific wording required for waiving minimum child support guidelines in US states, but it's not required wording in the country in question, however I'm concerned about future scenarios where I could become liable for years of support arrearages which I had already paid in full.)
  Keep documentation -- like NEVER EVER give her cash.  Was thinking money order, but even those cost a pretty penny to get the copy from the bank to prove they were cashed.  And this happens in the states as well -- CPs receive cash and then claim they weren't supported.  Actually, in EX#3's decree from Ohio with his EX -- there' a line that says any money he gives directly to the mom is considered a gift.  Your best bet is to pay through the government -- if there is such a system.  Otherwise keep very very detailed documentation to cover your behind.
It seems like there's no way out of imputed income.  I really want to switch careers in the coming years, but I won't be able to earn the same amount every year consistently.  I really hate that judges in the US can practically force me to continue my current career even if it makes me miserable, for 2 decades or more.  Help!
Not sure what to advise there -- quite honestly.  If she moves to the states and you don't, and your country isn't recognized by the Hague ....  I think you might end up with bigger problems -- like a relationship with your child and denial by mom of phone calls, Skype, mail, and trips to come see you etc...
Thanks for any thoughts and assistance!

Hope that helps.....sounds like you already have a great grip on things and what you're facing.  Remember that the child is caught in the middle of this and didn't ask for all the drama that is going to ensue over the next 20+ years.  The child was born -- married or not, parents are on the hook to raise that child and care for it.

[ocean]

What if you addressed these concerns in THESE first set of papers NOW. First set of papers are always the most important and judges have to go off of those. If you had these answers addressed in these papers then when she files anything in the US, you can have those legal papers to back up some of it. Of course she can always ask for the US to modify them but would have to be a good reason.

Just thinking but can add things like:
1. Only court that can modify these papers is xx (make her go back to home country?)
2. If mother moves out of country, both parents agree for US courts to take over and start following the US laws of child support and visitation for the first state mom moves to until child is 18 (21). Here is it 18 in many states and 21 (22) to finish college.

Call a US lawyer and see what you can add NOW to help protect you later. Most will talk to you for free for first phone conference or pay $100 for an hour on the phone. Worth it!

Like MB stated, everything needs to be in there now. If it is not written , you do not have it (travel costs, holidays, vacations, birthdays)...Times, dates when possible and where you will do exchanges now and later on.

[MixedBag]

Oh....and get the order somehow officially translated into English from over there so that there is no denying what the interpretation is once it hits the US in terms of words.

Interpretation -- well, that's another whole story, but if you can start with a document written in English with words that are universal.....(not "Secondary Education" which of course is English, but very British).

Sorry.....that just came to mind.

If I brought a German order to the states -- my first step would be to get it translated -- and if my EX didn't speak good English....translations could be swung potentially in my favor and he'd never know.  (not my case....but I think you get the idea).