Meeting with confused attorney tomorrow

[Ref]

Dear Soc,

You have been wonderful helping me figure out how to deal with my job loss and subsequent modification of child support filing and how to deal with my ex's vindictive subsequent visitation modification and contempt filing. I have an attorney right now who is giving me very upsetting advice.

I was working with a different attorney in the firm before. He was the "owner" and I suppose he hired or partnered up with the one I have now. This "new" (he actually sounds older) guy is giving me the confusing advice. I was hoping you could help me out.

State: Florida

Regarding Child Support Modification

Fact:

1. I was involuntaily let go because of restucturing
2. I spoke to several people in my field and they say they are not hiring (nothing in writing)
3. 90-95% of the jobs on Monster.com state that I need a Degree or experience in an industry that I don't have. ( looked at 50)
4. The 5-10% that I might qualify for pay about $19,000 - $45,000 a year.
5. I was making about 65k at the old company but at my last Child support change I was making $95,000.
6. I pay $265 a month in healthcare for our daughter
7. My exwife voluntarily quit a job about 3 years ago that paid $30k to continue her schooling.
8. She now has her Masters and is woking minimally for $8/hour.
9. The same company that she is working for has dozens of jobs on their webpage that she is qualified for, although all the higher paying ones say "salary based on experience". The one that she is over qualified for that they do have a salary is $26k.
10. I decided the only way to have a chance at making the same money I did before, is to accept a coworker's proposal to start a company together.

PROBLEM:

My attorney stated that I should be paying the $800/month in child support because at $40k my GROSS income would be $3700/month and based on the scale, I should pay that much. Florida calculates on net income, they also go by % income. They also deduct for healthcare. He did not consider BM's income at all in this or the healthcare.

I also pay for the travel expenses. BM moved away many years ago. She agreed to deduct some of the costs during our last modification. It comes to about $250/month minimum.

Regarding Contempt

I sent you a very length listing of noncompliance that my exwife is guilty of doing. Many of it you stated was a waste of time and would just anger the judge. You said that there were 3 items that I have a good chance of getting.

The first was $300 court order for her to reimburse me for legal costs associated with not appearing at a deposition. The second is for $375 that she owed me per our agreement for unaccompnaied minor fees that she is supposed to split with me. The last was for her not notifying me of illnesses that my daughter has. She missed 15 days of school over it last year.

My attorney simply stated that I should be dealing directly with my daughter and not with my ex because she is 15 years old. He said that he didn't see the need to file for the contempts, not even  mentioning the monetary ones.

Soc, my ex sued me for bogus contempts. I feel like if she is going to drag me into court for BS that I should at least have the gripes that I have been holding back on for the sake of peace heard.

REGARDING MY ATTORNEY"S ACTIONS

I received the depressing paperwork yesterday. In it it shows communication with my ex's attorney and my answer to her petition to decrease my visitation. He never discussed filing any of this with me prior to sending it.

QUESTIONS:

Child Support

1. Would the Monster.com job listing be enough to prove that there are no jobs that I can qualify for makign the kind of money I did before?

2.  Is it reasonable to state that my income should be imputed at $35k ( about the middle of the range of jobs I am qualified for).

3. Is it reasonable to impute my ex's income based on the $30k job she had prior to her Master's degree?

4. There is case law to support deducting visitation costs. Why isn't my attorney taking that into consideration?

5. Should I be concerned that he calculated my CS based only on my gross income and not my ex's and my net income?
 
Contempt

6. I understand that my reasoning for going for my contempts is emotional based on her filing the bogus contempts and the reduction of visitation, but is is truely unreasonable?

7. Why would he be trying to get me to drop the contempt charges?

MY Attorney's Actions

8. He doesn't seem to care about my interests at all. How should I talk with him to get him to be as interested as my old attorney in my case?

9. Is it common for the attorney to file and discuss issues with the other parties without client's consent?


Soc, I am really scared. I can't afford to pay this amount in support anymore. There is no way I will get a job that can pay me the way that I was paid before. Now my ex is really trying to screw me by taking time with my daughter away from me and filing these bogus contempts. My attorney is not listening to me. He is treating me like I started my company to avoid paying support instead of me trying to make MORE money than I could in the market.

Thank you for all of your help

Ref

[socrateaser]

>QUESTIONS:
>
>Child Support
>
>1. Would the Monster.com job listing be enough to prove that
>there are no jobs that I can qualify for makign the kind of
>money I did before?

Probably, but I'd contact a land based headhunter and get something from them, too. The point is that you have to "continue" to diligently search or the court will believe you're playing games. Now, if you have set up a corporation, and invested real capital with someone else, and you are making a go of that business, then the court will have to consider that as a fait accompli. But, if it's just talk and no do, then the court's not gonna cut you any slack.

Note: most CS hearings are conducted with affidavits, not testimony, so letters and reports from businesses, that ordinarily would be inadmissible, may be admitted and sufficient to prove your point. But, if the other parent is represented, then that attorney will probably have some evidence to refute your contention that no work is available (or, he/she's not very good).

>2.  Is it reasonable to state that my income should be imputed
>at $35k ( about the middle of the range of jobs I am qualified
>for).

Your income will be imputed to your earning capacity, which means that if there's a $40K job and you can qualify for it, then that's how you'll be judged. The way to prove differently is to apply for the 40K job and be rejected. Then you have proof that your personal earning capacity, without the diploma is not $40K.

>3. Is it reasonable to impute my ex's income based on the $30k
>job she had prior to her Master's degree?

It is in CA -- in FL, I don't really know. You should have the same sort of evidence to prove her earning capacity as you have for your own.

>4. There is case law to support deducting visitation costs.
>Why isn't my attorney taking that into consideration?

Probably because it's small change in the scheme of things. His point that your kid is 15 is well taken -- if she wanted more time with you, then you would have the leverage. If she doesn't, then you're screwed, and there's little you can do about it.

>5. Should I be concerned that he calculated my CS based only
>on my gross income and not my ex's and my net income?

I don't know FL law, but I believe that it takes both parents' incomes into consideration. However, if the other parent has the bulk of parenting time, then her income will be relatively insignificant in changing the calculations. But, if you want to know, then do a bunch of scenarios and see what the money differences are -- and if it's substantial, then show them to your attorney and tell him that you want to try to impute the other parent's income.

The attorney may not want to do this without getting an expert witness (vocational evaluator), and that will mean that the other parent will do similarly, and then you're talking about a separate hearing with experts at $500 per hour plus investigation time and depostions and attorney fees, and if you go for that, then you won't have any money left to pay for your new business venture.

Point being that it may be cheaper to just agree to pay the $800 per month from savings while you're trying to get the business going, and chalking it up to a cost of doing business.

This actually leads to an interesting thought about converting what would otherwise be considered personal non-deductable expenses by the IRS, into business startup costs. I've never looked to see if any cases in tax court have ever argued this (and I don't have time at the moment). But, it has some logical merit.

>Contempt
>
>6. I understand that my reasoning for going for my contempts
>is emotional based on her filing the bogus contempts and the
>reduction of visitation, but is is truely unreasonable?

We already covered this area. Don't whine at me. The only contempt that's a slam dunk is the failure to appear at the depo.
>
>7. Why would he be trying to get me to drop the contempt
>charges?

No bang for the buck. Not showing for a depo is a big deal when the hearing is pending, but if you already had it, then you don't need the info anymore. So, you're chasing old legal fees with new legal fees, and if you lose, then you paid twice as much.

I don't think you'll lose, but I don't read tea leaves, either.

>MY Attorney's Actions
>
>8. He doesn't seem to care about my interests at all. How
>should I talk with him to get him to be as interested as my
>old attorney in my case?

Don't try. Tell him what you want, and if he isn't willing to operate under those guidelines then find a new attorney. Attorneys have thick skins, so don't be afraid to say what you want to achieve and ask him how he thinks you can achieve it, and more to the point, IF he thinks you can achieve it, and if NOT, then WHY NOT?

Then if he tells you, LISTEN, because even if you don't agree, you may learn something. Most clients don't listen when they hear something that they don't agree with. The attorney may be a boob, but, he may not. You need to be objective about the situation, because the judge will be objective. If you can't look at your situation and find an easy win, then you're probably gonna lose, because the judge must act in the child's best interests, and that usually means erring on the side of the custodial parent.

It's not fair -- but it is the law, so deal with it.

>9. Is it common for the attorney to file and discuss issues
>with the other parties without client's consent?

It is, unless you tell the attorney up front and in writing that his employment is conditioned on him taking no procedural action without obtaining your consent in advance.

>Soc, I am really scared. I can't afford to pay this amount in
>support anymore. There is no way I will get a job that can pay
>me the way that I was paid before. Now my ex is really trying
>to screw me by taking time with my daughter away from me and
>filing these bogus contempts. My attorney is not listening to
>me. He is treating me like I started my company to avoid
>paying support instead of me trying to make MORE money than I
>could in the market.

I don't have sufficient facts to comment objectively. If your attorney doesn't believe you, then you need to ask him WHY, and stop beating around the bush. Because if you can't convince YOUR attorney that you're on the level, then you sure as hell can't convince the court.

[Ref]

Just to let you know, My partner and I have been working on deals since we got laid off. We are about to finish our Federal and State filings. It seems promising. Most of my customers want to continue business with me.

I calculated child support with my income at $40k a year and BM's at $30k. I also took the adjustment for health insurance based on % income as required. My obligation would be $380/month. If I include visitation costs adjusted by the % income, it would be about $260. It seems to me that it would be worth the effort. I haven't even looked at retroactive filing either.


Question for you

1. Do judges usually allocate retroactive adjustments over 12, 24, 36 months?

I keep picturing you as Bruce in Bruce Almighty trying to answer the prayers from all the people in the town. I really appreciate everything.

Have a happy holiday
Ref

[socrateaser]

>Question for you
>
>1. Do judges usually allocate retroactive adjustments over 12,
>24, 36 months?

If by retroactive adjustments, you mean arrears, the judge will calculate a reasonable payment, but just how he/she intends to calculate it is within the court's broad discretion.

[Ref]

As I understand it, Florida will reduces child support payments for the overage that you pay between the time you file and the case is closed.

This is what I mean by retroactive. I have been paying the full amount on time for the past 2 months and another month to be paid shortly.

I have a webpage up, business cards, sales lined up, a membership to the chamber of commerce and I have been in negotiations with several related people in the industry who are interested in having a "business partnership". My partner has built an office in his home and we have been taking calls and emails pretty consistantly. We have hired contactors to do some of the grunt work.  The only thing I need to do right now to finish up the paperwork is to file to be an LLC and all the other Federal and State paperwork.

You stated before that the judge would consider it a fait accompli.

1. How then would you, if you were my ex's attorney, impute my income?

2. How would you impute my income as my own attorney?

3. Would the judge then look at the jobs out in the market place and decide based on them?

Thanks Soc

Take Care
Ref

[socrateaser]

>As I understand it, Florida will reduces child support
>payments for the overage that you pay between the time you
>file and the case is closed.
>
>This is what I mean by retroactive. I have been paying the
>full amount on time for the past 2 months and another month to
>be paid shortly.
>
>I have a webpage up, business cards, sales lined up, a
>membership to the chamber of commerce and I have been in
>negotiations with several related people in the industry who
>are interested in having a "business partnership". My partner
>has built an office in his home and we have been taking calls
>and emails pretty consistantly. We have hired contactors to do
>some of the grunt work.  The only thing I need to do right now
>to finish up the paperwork is to file to be an LLC and all the
>other Federal and State paperwork.
>
>You stated before that the judge would consider it a fait
>accompli.
>
>1. How then would you, if you were my ex's attorney, impute my
>income?

You're not getting my attention, yet. How much money have you invested in this venture? That's the question the court will ask. Business cards and a home office built by a friend may ultimately provide you with a living, but a real corporation, even a service business, has real start up capital, so if you don't have a corporate or partnership bank account with at least $25K in it, or evidence that you've expended that kind of dough getting started in business, then the judge is just gonna shrug and say, "Find a job."

>2. How would you impute my income as my own attorney?

I'd tell you to go to every headhunter agency in business and have them searching for you, and I'd have a log of every place you've been and who you've talked to about work and their responses, and I'd have a report that shows what jobs are available and how much they pay for someone in your line of work.

And, then I'd tell the court that either you can be employed immediately at $X at such and such firm name, and the court should impute earnings based on that employment, or I would say, that at the moment, there is no work available for you in your chosen profession at any price, therefore the court should impute your support obligation based on minimum wage at 40 hours per week.

>
>3. Would the judge then look at the jobs out in the market
>place and decide based on them?

You need to find the baseline job that actually exists in the current market, and that you can obtain immediately, or you need to show DILIGENT efforts to seek work (i.e., going to job interviews every day of the week, if you can find them) in your chosen field with no success whatsoever.