I would like to request a child support modification given my ex-wife's increase in income, but I am concerned that my increased amount of parenting time will not be taken into effect because it has not been entered as a court order.
I have my child with me approximately 70 percent of the time per a verbal agreement my ex-wife and I have that differs from the original child custody order of 50-50 parenting time.
If I request to modify child support, can my ex-wife then fight me to return to the original 50-50 court-ordered custody schedule? I would like to pay less child support but not if it means risking time with my child.
I am unable to give you legal advice on divorce. I can give general divorce help for men, though, my knowledge is based on Wisconsin divorce laws where I am licensed to practice.
Your question includes two components. You are looking for a modification of child support. The judge in your case may set support based on the last order for placement or the judge may set support based on what is actually in practice.
The difficulty in setting support based on the schedule in practice is that parties will sometimes disagree on the allocation of time. For example, you may say that you have custody 70 percent of the time but she could say that is not true and in fact she has placement 70 percent of the time.
Therefore, oftentimes judges will rely on the last placement order and calculate support accordingly. Thus, the second component of your question is how to modify the placement order.
In general, you must demonstrate that there has been a substantial change in circumstance in order to modify placement. There is a higher burden that must be met when the divorce occurred less than a year or two ago.
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The courts rely on case law to determine what a “substantial change in circumstances” means, which means that it is open for interpretation by the judge.
If you and your ex-wife agree upon the placement schedule, you submit a stipulation to the court to avoid having a hearing.
Should you and your ex-wife disagree on modifying the order, you must file a Motion to Modify Placement in which you request that the court make changes to the existing order. At the modification hearing, you have the burden to prove that a change to the order is necessary.
It is incredibly important that your Motion to Modify Placement set forth the substantial change of circumstances to defeat a motion to dismiss.
After the judge identifies the parenting time allocation, he or she will set support using the shared placement formula. Both you and your ex-wife are required to submit a financial disclosure statement to the court in which you list your income and expenses.
These disclosures must be truthful and honest and paystubs should be attached as proof of income.
Where I practice, because placement is shared, both of your incomes will be taken into consideration and a formula is used to calculate the support amount factoring in the number of children, the number of “overnights” each parent has with the children, and each parent’s gross monthly income. Credit may also be given if a parent pays health insurance premiums for the children, school tuition, or other special expenses.
Remember, I am unable to provide you with anything more than divorce tips for men, so please consult with a divorce lawyer in your jurisdiction.