Bonehead move..

[Tunie]

What is the name of your state? Illinois

My husband's ex filed a modification for support on December 21st last year, the first one since the divorce over 6 years agoOn December 29th, he was notified that he was going to be involuntarily severed from his job of 5 years and it would be effective February 29 of this year. He found and took another job that started on March 1 but pays substantially less to start than his previous job. He took the new job because it was in his field of expertise, was near the area where we live (we did not want to move again unless we absolutely had to - his old company transferred him 3 times in 5 years) and it does have the potential to provide more income in the not to distant future, probably not as much as before, but, hopefully, close to it.

At the hearing, which my husband did not attend (the bonehead part) the judge ordered the new support amount set at what will amount to 40% of his CURRENT income based on his income from the job he NO LONGER has. He also made the new amount RETROACTIVE to January 21st - why that date or why it would be retroactive in any case is unknown to us at this point.

So now he's already behind the eight ball for the first time in this matter - he has never been in arrears or missed a payment in over 6 years.

My husband asked his attorney THREE times before the hearing if he should attend and she told him no, three times.

She said he had provided everything asked for, done everything asked of him and the hearing was only a formality to set the new support amount, a figure that would be 20% of his income after taxes and paying the monthly medical insurance premium which covers the child.

She advised that both lawyers had agreed the new amount calculated was correct.

My husband's lawyer is filing an appeal and setting a hearing, which, obviously, my husband will attend no matter what his attorney tells him! She advises that she is as shocked as we are and had attempted to advise the judge of the facts of the matter regarding my husband losing his previous job and getting another one during this modification process but it fell on deaf ears.

Why would or can the judge do this and will it stand up to an appeal?

My husband is not trying to shirk his obligations in any way and never has. We have figured out that if this order stands as entered that we will have $100 a month to live on after paying a mortgage that is not much to begin with for the decent, little house we live in.

On another note, husband has never received any financial information about the ex for over 6 years. Is he entitled to copies of her tax returns or other financial information?

Thanks for any assistance.

 

[BL]

Well now. I take it that the orders State The X is to notify of financial information ?

If so, it is a Contempt of Court Order.

Why hasn't the Lawyer Addressed this ?

It is good the Lawyer is appealing.

Sometimes Judges miss things , and sign orders anyways.

Another reason, is maybe the Judge concluded that instead of taking a lower paying Job, there was a likelihood he could have found employment that paid the same wages .

 

[Tunie]

No....

if you're referring to the divorce decree and the Marital Settlement Agreement, those documents do not state that my husband was supposed to provide any proof of financial info.

When the ex filed the modification petition, she requested certain items, one of them being the last two years tax returns which were then provided so there isn't and wasn't any contempt at any point.

The judge presided over the hearing and from our lawyer's account of the proceedings, he was solely the one who made the decision on the support amount despite what my husband's attorney presented as far as evidence of his former job and his new job situation. Despite both attorneys presenting their agreed upon new CS calculation per state guidelines. It wasn't a matter that the ex's attorney stuck a piece of paper in front of him that said "40% for CS" and the judge just signed off on it. The judge made his own decision.

Not being there for the hearing was, like I said, a real bonehead move on my husband's part and it won't happen again. I kept saying we should attend for a purely selfish reason, I wanted to see the ex who I have never met in four years! But my husband assured me that his lawyer assured him 3 times he did not have to attend. Now we know better. Hindsight is 20/20.

As far as taking a lower paying job when he could have taken one that paid the same wages.... I only wish. As soon as he was notified at the end of the year last year, he got enrolled in his ex-employer's program that assists in teaching people how to find employment, not secure it for them, but how to interview, do a resume, things like that. He also posted his resume on all of the job search sites he could find, hit the pavement and did everything he could to find a job that would utilize his training and skills. The one he took was the closest he could get to his prior position and after a couple of months of extreme stress wondering what was going to happen, a very welcome job offer.

Surely a person has the right to take a job in their field, semi-near their own town that might pay less to start with the potential to make more as time passes. Yes, he is making less now but it isn't so substantially less that he couldn't still pay CS in the amount he was paying to her before, which would have been more per state guidelines since he is now making less.

This is, we believe, a matter of the ex being mad that she didn't hit him with a modification before now when he was making more. Is that something that gives the judge the right to now correct on her behalf, by going way overboard? Or something that my husband should be punished for? As I said before, he has paid CS faithfully and never been in arrears. There's an over 6 year established record of his compliance.

But 40% of an income that no longer exists? 40% is, by state guidelines, 20% too high strictly based on state law and his present income and even higher than it would have been if he STILL HAD HIS OLD JOB.

What the judge did was ignore evidence and his actions seem arbitrary and capricious at best.

It wasn't a matter of having a job making a million a year, quitting and working at a fast food restaurant to avoid paying CS. But that is the exact implication the judge has made with his ruling.

Does anyone have any idea if my husband is entitled to discovery of the ex's financial status or tax returns? (my second question in my first post regarding this matter.)

 

[stealth2]

IL bases child support solely on the obliger's income, So her tax returns/financial status are moot to the situation.

 

[Tunie]

So this does not apply?.....

This section I read on this web site: http://ocse3.acf.dhhs.gov/ext/irg/sps/report.cfm?State=IL is what prompted my question about whether or not the non-custodial parent is entitled to discover financial info about the custodial parent.... (This is with regards to Illinois - the state of jurisdiction in this matter.):

"The guidelines shall be applied in each case unless the court makes a finding that application of the guidelines would be inappropriate, after considering the best interests of the child in light of evidence including but not limited to one or more of the following relevant factors: (a) the financial resources and needs of the child;

***(b) the financial resources and needs of the custodial parent***

(c) the standard of living the child would have enjoyed had the marriage not been dissolved; (d) the physical and emotional condition of the child, and his educational needs; and (e) the financial resources and needs of the non-custodial parent. If the court deviates from the guidelines, the court's finding shall state the amount of support that would have been required under the guidelines, if determinable. The court shall include the reason or reasons for the variance from the guidelines. (750 ILCS 5/505)."

I have not yet been able to locate the site where I might read up on 750 ICLS 5/505 but this appears to state that the NCP does have some right to know what the financial status of the CP is, unless I'm completely misreading this..... probably am!!

 

[stealth2]

Good job on digging further. Then it would probably be at the judge's discretion - your husband should ask his lawyer to ask that she produce her financial records.

 

[Whyte Noise]

The NCP doesn't have a right to know the CP's financial situation.... the COURT does.

Now... re-read what you copied and pasted there. This is your clincher sentence:

"The guidelines shall be applied in each case unless the court makes a finding that application of the guidelines would be inappropriate".

In other words... the guidelines in Ill. say a flat % of the NCP's income, and that is what's applied, period. Forget the CP's income, it's not applicable. UNLESS the courts makes written findings of fact that the guideline amount wouldn't be proper. In those findings they can look at the items you listed, but by no means do they HAVE to. They do not have to look at her income, because the guidelines don't call for it to be included. If they do happen to look at her income, and deviate from the guideline amount, there has to be written findings of WHY they deviated from the guidelines.

How much "should" his CS be? How many children, and what's the percentage for that amount of children? That's what his proper CS amount should be. Hell, even in Ga. where my CS order is (and is like IL... only the NCP's income is considered) 5 or more children is only 39% of the NCP's gross, so if the court DID order 40% of his income for CS, I'd be finding out why.... especially if according to the duidelines his % should be lower than 40.

Also... check the court documents and see if there are written findings as to WHY the court deviated from the guidelines (if they did). They should be there.

 

[Tunie]

I see...

Now I get it. If she made a million a year and we knew that for a fact, it might be worth pursuing her financial info, maybe? I think it might behoove us to at least see if our lawyer can get at least the last couple of years of tax returns.. even tho, as Missouri Gal said, no one else really cares or is entitled to such info except the Court.

We thought, too, that Illinois has a flat 20% for one child and there is only ONE child involved. His previous support amount was based on a flat 20% rate.

And the judge did, indeed, order an amount that given my calculations, turns out to be about 37% of his current net income after taxes and medical insurance monthly premium (not 40% as I stated previously, I was ballparking but now have used exact figures.)

Net after taxes is $2640. per month minus $340.00 for medical insurance = $2300.00 to be considered for child support calculations. The new order per the judge is for $834.00 a month which is about 37% - 17% over the state limit.

What we figured the amount should be, based upon the above figures, is $538.00 (20% of $2300.00) The previous amount was $463.44 a month and had been the same since 1998. This is the first modification the ex has filed since the divorce.

We have not seen the court records on last week's hearing but will be requesting them. I did contact the clerk's office after the hearing but all they had was that the new support amount was $834.00 and our lawyer has sent us a copy of the new order but nothing else yet.

So, it looks to me as tho' the judge arbritrarily decided on a figure that neither complies with the state law/guidelines and based it on my husband's income from his PREVIOUS job, which even at $834.00 is more than he would paid if he still had his old job.

Any advice on how to be fully prepared for the appeal hearing? We do have documentation from his former employer that he was involuntarily severed but other than that, we aren't sure what else we should have/document/bring to the hearing.

We are, of course, hoping that the judge will even listen to my husband's explanation of why he has a similar job in his field but at less pay.

I do most of the research on all of this and have scoured the 'Net for info. I have found the Illinois site which contains the 750 ILCS Statute 5 that pertains to this matter and it seems as tho' it's pretty clear on the percentages absent a pretty good reason for deviating from the guidelines. But, like I said, perhaps the court records will give us a clue as to why the judge did what he did.....

Thank you to all for your help... it is very appreciated.

 

[Tunie]

Yikes!

From what I've read in the replies to my initial post, it appears that my husband's attorney should be filing an appeal of the judge's order of 4/15/04 setting the CS at 17% above the state guidelines.

Our attorney just called and said she filed a Motion to Reduce Child Support. Is THIS what should have been done in answer to the judge's actions? Is this, then, the "appeal" ???

 

[Whyte Noise]

Here is a link for some FAQ's you might be interested in reading:

http://www.divorcenet.com/il/ilfaq-07.html

Number 11 pertains to your situation.

Numbers 14, 15, 17, 18, 19, and 24 might be ones you want to look at as well.

 

[Tunie]

Wow, is this stuff...

purposely confusing..?!

I've read so much lately that my eyes are blurry!

The particular link listed in the above post is very informative but also confusing as well.

Item 6. ... adult children (over 18) has the right... to continued support to... attend college or trade school.

I've read that if the Marital Settlement Agreement does not specifically order and state that the NCP is to pay a set amount for college/trade school then it stops at 18 if the child has graduated from high school or may continue until graduation. In this case, the child will have graduated before he turns 18.

Husband's agreement states that when the time comes, if it does, that college expense contributions, if any, will be based on both parties and the resources of the child's ability to contribute to the same. Nothing ordered, no specific amounts (50/50 for example.) Nothing.

So which is which??

Item 11. Death is not an end to support. Does this mean that should my husband, God forbid, die before the child is 18 that I become responsible for support since I am my husband's beneficiary per our Wills and life insurance policy?

The whole document continually refers to taking into account the same factors; financial resources and needs of both CP and NCP, standard of living of child had marriage not been dissolved, etc. etc.

If we are not really the ones to request a disclosure of the CP's financial status, how can we determine anything with regards to Item 18?? (Income of CP is much higher than NCP.) Guess we WILL have to ask our lawyer about requesting this information. Six years is a long time, CP has remarried and divorced again and we have no idea of HER financial status.

Then again, Item 18 states one thing and the succeeding Item 19 says another. "Condition of custodial parent will be considered but the source of income will not ordinarily impact the amount.... " NCP pays.

Item 31 for our particular circumstances seems to be the one to look at: Involuntary loss of the NCP's employment not brought about by deliberate conduct with an intent to evade the child support obligation constitutes a material change in circumstances... exactly our situation, my husband lost his job in a downsizing action by his company where they elimated his position and combined others to save money.

I would think that 6 years of faithful CS payment with no arrearage, involuntary severance from his job, obtaining another job in his field that, at the start, pays less but should, hopefully, improve, would suggest that support should have been DECREASED not INCREASED.

We shall see at the hearing.... thanks for "listening."

 

[Whyte Noise]

Item 6.... Your husband's agreement that is part of the court order is what is enforcable.

Item 11.... The CS would be paid out of your husband's estate should he die prior to the end of the CS obligation.

 

[Tunie]

I understand....

that my husband's estate could be liable for any remaining support but if he passes before I do, everything passes to me both by law and by Last Will as his legal survivor.

How does support for a child that I have no legal liability for come into play in that scenario? Are you saying that if he dies and his Will states that I "get everything" and his life insurance policy has me as the sole and only beneficiary that the state of Illinois can take from me whatever is left to be paid on the support obligation?

Thank you, MissouriGal, you have been very helpful.

 

[Whyte Noise]

I'm not sure on all the 'legalities" of how it would work exactly...

Perhaps you can address that Question to IAAL, the local Family Law attorney... or do a search with the search button up there, and see if he's responded to that question before.

 

[julbug66]

Re: Yikes!

Our attorney just called and said she filed a Motion to Reduce Child Support. Is THIS what should have been done in answer to the judge's actions? Is this, then, the "appeal" ???

A Motion is more likely to be accepted than an actual "appeal". Appelate courts don't like to overturn Family Court rulings unless there is an OBVIOUS error (i.e. someone forgot to carry the one in their calculations). hopefully the Motion will be successful. document everything. every day you have with the children, every penny he spends on them at your home, every dollar spent on CS. does he cover them under his insurance? doesn't that count for something in your state?

Did you notice the guidelines state that the CS is based on the "standard of living the children would have enjoyed had the parents stayed together" in essence, if your husband was still married to her, and had to take a lesser paying job, their standard of living would have gone down. also, that little blurb about "the NCP's financial needs"? you can't live on $100 of disposable income. period. there's really no way that the figure of $800+ out of $2300 net would stick for very long.

out of curiousity, why did the X petition to modify CS in the first place? did she think his income was greater than he had presented, or did her income go down or something? or was it just out of spite?