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Retroactive midification might be possable



 
 
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  #1  
Old April 16th 09, 07:45 AM posted to alt.child-support
Roger Shoaf
external usenet poster
 
Posts: 1
Default Retroactive midification might be possable

As someone that has come from a behind position where I had an 80/20 custody
to one where I have 50/50 custody and now for the first time in my life I
have cashed an unemployment check I now seem to be destined to be on the
receiving end of the guideline calculator.

I have an interesting situation.

In January of 2007 my ex (with lawyer) and I (without lawyer) went to a
hearing to establish a child support order. I was of the understanding that
that morning we were going to have a meeting and discuss and negotiate but
the ex's lawyer then disabused me of that notion.

When the case was called I objected as I had been led to believe that we
were going to negotiate first but lawyer pressed on and ended up being the
one pushing the buttons on the dissomaster and I ended up being ordered to
pay $1069 a month.

The first week in Feb I lost my job and was unemployed for 5 months.

The ex's lawyer prepared the order, but did not submit it to me for my
approval as required; also she did not attach the instructions to seek a
modification information sheet mandated in item #12.("A notice of rights and
responsibilities- Health Care Costs and Reimbursement and Information Sheet
on Changing a Child Support Order (Form FL-192) must be attached and is
incorporated into this order.")

I wrote the lawyer a letter with a cc to the Judge and to the ex shortly
after receiving the order, complaining that she had not submitted the order
to me prior to giving it to the Judge, ( Violating the rules of court) and
pointing out that she had not attached the required info sheet.

Several weeks after I wrote the letter, my ex asked for permission to
dispose of some community property, and I agreed she could and further
agreed that if she dumped her lawyer, continued in good faith and we could
settle everything by stipulation. ( This was a doll collection that I
estimate she spent at least 20 K to acquire.) She dumped the lawyer, and had
been getting cranky assuming that I was not looking hard enough for a job.
She threatened to sick the child support agency after me. Being broke and
desperate to avoid conflict, I borrowed what I could from a finance company
at less than pleasant rates, and offered her full payment of the arrears.
She then chewed my rear for borrowing from those sharks, and said it would
be OK to just pay here something and catch up when I got a job.

I sent her some money anyway, and subsequently went back to work. A few
days after I started back to work, I get served with a motion to show cause
by the local child support agency also seeking a seek work order. I
contacted the ex and asked her if she really wanted me to take time off work
to explain to the judge why I should not be ordered to get a job, and also I
informed her of my intent to give her half of every paycheck until we were
square. I also reminded her that I considered the lawyer with the child
support agency to be a violation of our agreement and since I had offered
her full payment that she rejected I was thinking that it was an act of bad
faith.

In June of last year I informed her that I was in such a position now where
we could revert to 50/50 custody (Her objections to this before was that
since I was driving a truck and had an irregular schedule it would be too
disruptive to the kids schedule, no doubt using the words she was coached by
her lawyer to use.) Two trips to the mediator later we had a 50/50 deal to
start in October.

By December I figured that I was about even on playing catch-up and we had
several volleys of e-mail discussing how much she would now be paying me in
support, but I was suspicious of her calculations, so we agreed to meet with
the court facilitator.

I had asked her to give me copies of her tax returns and initially she
dodged doing so and then the night before our appointment she gives me
partial copies of her tax returns and only then reluctantly admits she got a
$10,000 bonus. I suggested, and she agreed that we would cancel the
appointment to think this new twist over.

She went to the appointment anyway and discussed the matter with the
facilitator. Then told me that support orders can't be made retroactive, so
the bonus nor my unemployment, nor my underemployment mattered as it could
only be modified going forward, so I was out of luck, and it was my fault
because I could have gone to court to request a modification.

In thinking things over, I offered her that if we were to go back and
recalculate what the matters should have been based upon the actual earnings
and custody percentage time, then once we got to the present if she owed me
any arrears, then I would accept a note (interest free) not payable to me
but to the kids to set up a trust for there post high school education. This
note would only become due and payable if, and only if, she came in to an
inheritance of more than a quarter million dollars. She refused. My
thinking here was that my intent in paying was that it be a benefit to the
kids, yet I recognize that having to pay something on the order of 10 grand
unrepentantly would be a really tough scrimp.

My questions.

Do you think I have a snowballs chance in hell of winning the retroactive
adjustment?

In your opinion, is my proposal fair? Should I be fair or should I go for
the whole enchilada?

It seems to me that the argument that I should have gone back to court to
request a modification fails for several reasons. First I was not given the
requisite notice of how to modify the order and that the pattern apparent in
this case constitutes a fraud, also giving grounds to modify the order
retroactively. Also consider that retroactive modification is ordinarily
granted to the date of filing the motion as that gives the other side
notice. Here the shoe is on the other foot as the ex nor her lawyer gave me
the notice required to allow me to avail myself fully in the court.

--

__
Roger Shoaf

Important factors in selecting a mate:
1] Depth of gene pool
2] Position on the food chain.





  #2  
Old April 17th 09, 06:15 AM posted to alt.child-support
Chris
external usenet poster
 
Posts: 2,421
Default Retroactive midification might be possable


"Roger Shoaf" wrote in message
...
As someone that has come from a behind position where I had an 80/20
custody
to one where I have 50/50 custody and now for the first time in my life I
have cashed an unemployment check I now seem to be destined to be on the
receiving end of the guideline calculator.

I have an interesting situation.

In January of 2007 my ex (with lawyer) and I (without lawyer) went to a
hearing to establish a child support order. I was of the understanding
that
that morning we were going to have a meeting and discuss and negotiate but
the ex's lawyer then disabused me of that notion.

When the case was called I objected as I had been led to believe that we
were going to negotiate first but lawyer pressed on and ended up being the
one pushing the buttons on the dissomaster and I ended up being ordered to
pay $1069 a month.

The first week in Feb I lost my job and was unemployed for 5 months.

The ex's lawyer prepared the order, but did not submit it to me for my
approval as required; also she did not attach the instructions to seek a
modification information sheet mandated in item #12.("A notice of rights
and
responsibilities- Health Care Costs and Reimbursement and Information
Sheet
on Changing a Child Support Order (Form FL-192) must be attached and is
incorporated into this order.")

I wrote the lawyer a letter with a cc to the Judge and to the ex shortly
after receiving the order, complaining that she had not submitted the
order
to me prior to giving it to the Judge, ( Violating the rules of court) and
pointing out that she had not attached the required info sheet.

Several weeks after I wrote the letter, my ex asked for permission to
dispose of some community property, and I agreed she could and further
agreed that if she dumped her lawyer, continued in good faith and we could
settle everything by stipulation. ( This was a doll collection that I
estimate she spent at least 20 K to acquire.) She dumped the lawyer, and
had
been getting cranky assuming that I was not looking hard enough for a job.
She threatened to sick the child support agency after me. Being broke and
desperate to avoid conflict, I borrowed what I could from a finance
company
at less than pleasant rates, and offered her full payment of the arrears.
She then chewed my rear for borrowing from those sharks, and said it would
be OK to just pay here something and catch up when I got a job.

I sent her some money anyway, and subsequently went back to work. A few
days after I started back to work, I get served with a motion to show
cause
by the local child support agency also seeking a seek work order. I
contacted the ex and asked her if she really wanted me to take time off
work
to explain to the judge why I should not be ordered to get a job, and also
I
informed her of my intent to give her half of every paycheck until we were
square. I also reminded her that I considered the lawyer with the child
support agency to be a violation of our agreement and since I had offered
her full payment that she rejected I was thinking that it was an act of
bad
faith.

In June of last year I informed her that I was in such a position now
where
we could revert to 50/50 custody (Her objections to this before was that
since I was driving a truck and had an irregular schedule it would be too
disruptive to the kids schedule, no doubt using the words she was coached
by
her lawyer to use.) Two trips to the mediator later we had a 50/50 deal
to
start in October.

By December I figured that I was about even on playing catch-up and we had
several volleys of e-mail discussing how much she would now be paying me
in
support, but I was suspicious of her calculations, so we agreed to meet
with
the court facilitator.

I had asked her to give me copies of her tax returns and initially she
dodged doing so and then the night before our appointment she gives me
partial copies of her tax returns and only then reluctantly admits she got
a
$10,000 bonus. I suggested, and she agreed that we would cancel the
appointment to think this new twist over.

She went to the appointment anyway and discussed the matter with the
facilitator. Then told me that support orders can't be made retroactive,
so
the bonus nor my unemployment, nor my underemployment mattered as it could
only be modified going forward, so I was out of luck, and it was my fault
because I could have gone to court to request a modification.

In thinking things over, I offered her that if we were to go back and
recalculate what the matters should have been based upon the actual
earnings
and custody percentage time, then once we got to the present if she owed
me
any arrears, then I would accept a note (interest free) not payable to me
but to the kids to set up a trust for there post high school education.
This
note would only become due and payable if, and only if, she came in to an
inheritance of more than a quarter million dollars. She refused. My
thinking here was that my intent in paying was that it be a benefit to the
kids, yet I recognize that having to pay something on the order of 10
grand
unrepentantly would be a really tough scrimp.

My questions.

Do you think I have a snowballs chance in hell of winning the retroactive
adjustment?

In your opinion, is my proposal fair? Should I be fair or should I go for
the whole enchilada?

It seems to me that the argument that I should have gone back to court to
request a modification fails for several reasons. First I was not given
the
requisite notice of how to modify the order and that the pattern apparent
in
this case constitutes a fraud, also giving grounds to modify the order
retroactively. Also consider that retroactive modification is ordinarily
granted to the date of filing the motion as that gives the other side
notice. Here the shoe is on the other foot as the ex nor her lawyer gave
me
the notice required to allow me to avail myself fully in the court.

--

__
Roger Shoaf

Important factors in selecting a mate:
1] Depth of gene pool
2] Position on the food chain.


You ask a lot of legal questions that most folks here would be aloof to
answer. Thus, you'd be wise to seek legal counsel from an attorney. Bear in
mind that they will, at best, give you recommendations only (for what that's
worth); guaranteeing no particular outcome. They can't because judges are
allowed to rule ANY way they choose. That said, it looks as if you have
already accomplished far more than the average man concerning "child
support". As such, I would say although you are still getting ripped-off,
don't rock the boat because the mother can easily revert back to the worse
situation. I know the feeling of being faced with "pay me now, or pay me
later". A corrupt choice to say the least; but given such choice, I'll vie
for the former every time. You can take your chances, but you may not
(probably won't) be so lucky the next time. "Child support" attorneys' sole
purpose is to milk fathers for every drop they can get.

Don't ever forget who's in the driver's seat..................... EVER!







 




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