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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. |
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