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child support alimony paymentsBy Angela Foy

Attorney, Cordell & Cordell, P.C.

Upon divorce, a court may approve a stipulation or enter an order for child support payments, alimony payments, or both from one spouse to the other.  The purpose of the obligations differs, and therefore, how the receipt of inheritance may affect each obligation differs.

In this article, I’ll examine how an inheritance from your wife, or ex wife depending on where you are in the divorce process, affects child support, alimony (or maintenance), and modifications.

Child Support

The purpose of child support is to provide for the children as if the parties had not separated.  Child support is not intended to be an equalization of incomes in the two households, nor is that the starting point as it sometimes is in maintenance. Child support is heavily regulated.  Each state has its own standards and guidelines that vary from state to state. 

The child support obligation is dependent upon the parents’ incomes and the children’s placement schedule.  In most jurisdictions, if the parents share placement, then it is typical to consider both parents’ incomes.  However, if one parent has primary placement of the children, the child support obligation may be set considering only the other parent’s income.  Jurisdictions differ about what income is considered.  In some states, the courts consider all gross income of the parties, including winnings, inheritance, etc.  In other states, the courts only look at the net earned income.  It may be surprising that child support is often set regardless of children’s actual needs, unless a child has special or unusual needs that may be very expensive.  Courts recognize that both parents have the financial responsibility to support their children.  As a result, a parent with substantially less income than the other may still be ordered to pay support to the parent that earns substantially more if that parent has primary placement.

Your wife receiving a substantial inheritance would only likely change the child support obligation if the inheritance was such that she would continue receiving income from it and her previous income was relevant to setting the initial obligation.

 

Alimony/Maintenance

Maintenance has two main objectives, fairness and support. The court must consider the fairness of the order with respect to the financial situations of both parties.  As a result, the actual financial condition of the recipient spouse is important.  The support objective recognizes the obligation to support a spouse in a manner in which that spouse was accustomed during the marriage.  Maintenance payments are much more fact-dependent and few generalities can be stated because of the numerous factors that are considered in setting maintenance payments.

Because maintenance is fact-dependent, parties are much freer to contract as they wish.  Parties often stipulate that maintenance may terminate upon certain events occurring, such as one spouse cohabitating, or upon the sale of the marital home.  Parties also stipulate to the amount and term of the payments. 

Your wife’s inheritance most likely would substantially affect maintenance because her need for the support may be eliminated or alleviated.

 

Modification

Modifying either maintenance or child support, in most jurisdictions, requires a material change in the circumstances upon which the ordered payments were predicated.  A substantial change of circumstances affecting either party’s income usually satisfies this burden.  Generally the burden for modification of child support is that if the amount of support in the order differs from the amount that would be ordered if the standard or guideline was applied to the new circumstances, a substantial change has occurred warranting modification.  For modification of maintenance, the court is generally required to consider the same factors it considered when setting the original order.

The burden of showing that there has been a substantial change, including that one party received an inheritance, is on the party seeking the modification.  Child support is always modifiable, and in most jurisdictions, the support obligation exists until the youngest child turns 18 or graduates from high school.  Parents have tried to limit their future obligations or set a cap on what the support might be, but courts continue to find these provisions void as against public policy.  Conversely, maintenance is modifiable unless the parties agree and specify in their agreement that they are agreeing to non-modifiable maintenance.

The benefit of the child support obligation always being modifiable is that you generally always have grounds to inquire about your wife’s income.  This is true also if maintenance is modifiable.  In fact, most jurisdictions require an annual exchange of financial information.  You can specify exactly what documents are to be exchanged in the marital settlement agreement, including all tax schedules that would show the amount inherited.

Exactly what you propose in the settlement agreement, and how enforceable it would be, depends on the specific wording, the facts of your case, and the specific rules in your jurisdiction.

 

Divorce Attorney Angela FoyAngela Foy is an Associate Attorney in the Milwaukee, Wisc., office of Cordell & Cordell P.C. where her primary practice is exclusively in the area of domestic relations. Ms. Foy is licensed to practice in the state of Wisconsin, the U.S. District Court, and the Eastern District of Wisconsin. 

 Ms. Foy received her Bachelor’s and Master’s Degrees from the University of Notre Dame. She then continued on to receive her Juris Doctor from Marquette University.

 


Comments (2)Add Comment
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inputing income after divorce
written by curiousGeorge, December 20, 2012
My ex had income in 2009 - in 2010 im not sure she reported her income and hasnt worked since our divorce was final 10/2010.

She reported no income for the child support calculation originally.

I cant prove her income. I have however found recent website postings from her stating she has been working on projects and her experience as recently as 11/12

I also found evidence of her contributing to a product that is selling out of a retail store in my local area.

So being I can prove her skill set, education, fact she worked in 2009. Yet she hasnt worked voluntarily since the divorce.

Do I have any leg to stand on to impute an income on her with a modification case.

One consult with a lawyer today said no you have to prove change in circumstance. So being nothing has changed for her not taking a job it wouldnt go anywhere.

It bothers me quite a bit. the family law here in california says both parents are responsible for the support of the child

Yet my child support annual is way above minimum wage annual. I am basically paying my ex an income of 32k a year for her to pay her bills be unemployed and take care of the girls. Id rather pay a nanny 32k annual and take the kids on 100%... just saying.

So the example and the kids being 9 and 12 can be put in day care. She should set an example to get a job and better their living situation. Which im not happy with either.

Is there anything at all I can do to impute income on her to force her to get off her deadbeat tush and get a job and actually contribute to their lifestyle improving?

0
AILIMONY
written by PATRICIA PEDERSEN, February 18, 2013
A 38 YEAR MARRIAGE ....ME, THE WIFE HAS MS AND IS RECEIVING DISABILITY OD $297 PER MONTH..THE MARIAL HOME WAS SOLD AND THE ATTORNEYS TOOK ALL THE MONEY...MY X IS RUNNING MY COMPANY INTO THE GROUND...I HAVE A VERY SMALL IF ANY INHERITENCE OF ABOUT $10,000..MY X HUSBANDS HAS A MULTI-MILLION DOLLAR SERIES OF TRUST FUNDS AS WELL AS THE PROPERTY MY MARINA IS ON..THIS PROPERTY WAS REMOVED OUT OF MY NAME INTO HIS MOTHERS TRUST DURING A 3 YEAR PROCEEDING....SINCE I WON THE APPEAL...IT HAS BEEN REVERSED AND REMANDED FOR RETRIAL...HOWEVER, I AM ON STATE AID AND CANNOT FIND AN ATTORNEY TO TAKE MY CASE WITH OUT AT LEAST A $25k RETAINER AND MONTHLY PAYMENTS....i HAD A STROKE OR ?? TEST HAVE BEEN DONE THIS WEEK IN THE HOSPITAL..HOME HEALTH CARE WILL BE HELPING ME....MY LIFESTYLE WAS 1 MILLION DOLLAR HOME , JAGUARS, BMW 750IL, PRAGUE, PARIS, ASPEN....AT LEAST $10,000 PER MONTH EXPENDITURES...NOW HE STATES THAT HE IS BROKE...A NIGHTMARE

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