got served today - questions

[angeleyzad]

What is the name of your state? Maine

Okay, I got served today with the motion to modify. If any of you remember my previous posts, he was requesting many different things, such as more time with our boys, less child support, reductions for traveling, or me meeting him half way (he moved from NH to VT). He also wanted tax exemptions, and to change our youngest son's last name from my family name to his. Now comes his motion...

"...to reduce child support and to change parent-child contact with respect to the minor children, XXX and XXX, for the following reasons:
a. The Defendant is now residing and working in Vermont, and the existing parent-child contact schedule is not practicable given the distance between the parties;
and
b. There has been a substantial reduction in the Defendant's income since the time of the divorce."


Okay, here's the thing I'm unsure of. I have to submit a response within 21 days, but unfortunately can't afford the retainer until after next month (I'm in the process of building a new home). So, I need to do the objection to the motion on my own. I will see if my lawyer can take a look at it once I write it, but for now, this is all I can do. In his first reason for changing contact, he is stating that the current schedule is not practicable given the distance. Does this mean that he no longer wants every other weekend like he has now? I know that he was looking for more time in the summer, plus he had wanted more time such as teacher workshops from school (which, in my district, most fall in middle of the weeks, and are still a 1/2 day of school). Also, there is no direct request for meeting him half way, which is what he had asked of me before. So, do I assume that he is no longer asking for this? Also, do I assume that he is also not asking to have our son's name changed or the tax exemptions?

Also, as far as child support goes - he has listed that he expects to make $32,000 this year. According to the 2 pay stubs that he submitted with this, at the end of June his gross pay was $19,023 - so, since this was his income for 6 months, his income for a full year should be about $38,000. Wouldn't that be what should be used? Also, the $32,000 is not a substantial change from the $35,000 he had listed on our original court order. This $32,000 also does not include income from his second job, that he has had for the past 5 years.

In another section of the child support affidavit he filled out, there is a section for other info, other facts you think the Judge should know that may affect the amount of child support ordered. He wrote in this: "Four hour travel time each way to pick up kids, had tried to arrange a new agreement with XXXX prior to returning to court, specifically addressing reduction in daycare costs, and travel costs. she refused to make any changes."

Now, he did demand that I meet him half way/reduce costs for him based on incorrect information, which I had replied to him reasons whey it was not logical - he had never responded back to me, so it does not seem like it was any effort in good faith to come to an agreement.

I just want to get myself straight on the bearing of his statements so that I don't screw myself on this.

Another question - if it is not addressed in this motion to modify, can they still bring up other issues, such as the name and tax exemptions? My thoughts are no, but I want to be sure.

Thanks in advance for your help!

 

[Ohiogal]

What is the name of your state? Maine

Okay, here's the thing I'm unsure of. I have to submit a response within 21 days, but unfortunately can't afford the retainer until after next month (I'm in the process of building a new home). So, I need to do the objection to the motion on my own. I will see if my lawyer can take a look at it once I write it, but for now, this is all I can do. In his first reason for changing contact, he is stating that the current schedule is not practicable given the distance. Does this mean that he no longer wants every other weekend like he has now?

He wants the schedule changed and if it is every other weekend then yes he wants it changed from that. Which probably means no every other weekend.

I know that he was looking for more time in the summer, plus he had wanted more time such as teacher workshops from school (which, in my district, most fall in middle of the weeks, and are still a 1/2 day of school). Also, there is no direct request for meeting him half way, which is what he had asked of me before. So, do I assume that he is no longer asking for this? Also, do I assume that he is also not asking to have our son's name changed or the tax exemptions?


Never assume that but only answer what he put in the motion itself.

Also, as far as child support goes - he has listed that he expects to make $32,000 this year. According to the 2 pay stubs that he submitted with this, at the end of June his gross pay was $19,023 - so, since this was his income for 6 months, his income for a full year should be about $38,000. Wouldn't that be what should be used?


How much overtime was included in the $19k? Is his employment seasonal -- busier at other times than the others?

Also, the $32,000 is not a substantial change from the $35,000 he had listed on our original court order. This $32,000 also does not include income from his second job, that he has had for the past 5 years.

In most states second incomes do not count towards child support if the parent is already working a 40 hour week. I dont know about Maine for sure but I do know that several other states only require the parents to work 1 40 hour a week job. You don't think it is substantial but it is almost a 10% change so it may be. Use your argument that it is less than 10% change in income.

In another section of the child support affidavit he filled out, there is a section for other info, other facts you think the Judge should know that may affect the amount of child support ordered. He wrote in this: "Four hour travel time each way to pick up kids, had tried to arrange a new agreement with XXXX prior to returning to court, specifically addressing reduction in daycare costs, and travel costs. she refused to make any changes."

Him trying to arrange an agreement doesn't matter. negotiations ARE NOT admissible in court and trying to get them admitted violates the rules of evidence. Object to him bringing that up because it is not admissible. Also state that it was because he moved and increased the distance -- if that is what happened. If your move increased the distance then you can't state that.



Now, he did demand that I meet him half way/reduce costs for him based on incorrect information, which I had replied to him reasons whey it was not logical - he had never responded back to me, so it does not seem like it was any effort in good faith to come to an agreement.

Doesn't matter what happened during negotiations. It is not admissible.

I just want to get myself straight on the bearing of his statements so that I don't screw myself on this.

Another question - if it is not addressed in this motion to modify, can they still bring up other issues, such as the name and tax exemptions? My thoughts are no, but I want to be sure.

Thanks in advance for your help!

He might make motions to do so. But address things one motion at a time.

 

[angeleyzad]

Okay, I'm trying to do a response. I am not sure how I should have worded it, so I took it right from his motion.

The Plaintiff, XXXX, respectfully submits to this honorable Court, this objection to the Defendant’s motion to modify the Divorce Judgment, dated December 17, 2001, and entered January 14, 2002, and the Order Amending Divorce Judgment, dated January 5, 2004, and entered January , 2004, to reduce child support and to change parent-child contact with respect to the minor children, XXXX, d/o/b XXX, and XXXX, d/o/b XXX, for the following reasons:

a. The Defendant has made it clear to the Plaintiff that the every-other-weekend visitation schedule was to remain intact;
and
b. Defendant has shown that there has not been a substantial change in the Defendants income since the time of the Amendment to the Divorce Judgment.

WHEREFORE, Plaintiff requests this court deny the Defendant’s Motion to Modify Divorce Judgment, and for such further relief as the court seems just.

Now, I'm not sure on the reason a., about the visitation, because he doesn't want less, he has been wanting more. Not sure how I should bring that up.

 

[angeleyzad]

Response to OG's comments...

Thanks for your input. I guess the visitation change kind of threw me, because he does not want less time, he has wanted more time. He has not wanted to give up his every other weekend, or any of the time that he currently has, but he has been requesting more time, basically in the summer, and around school vacations that I currently have.

I will only answer what he has, I was just wondering how it would work if he asks for the other things in court. Would he have to submit a motion for them, or can they just bring it up and expect it to be heard?

As far as his pay and overtime, his job is not seasonal - firefighter/paramedic. He has regular overtime every week, so far about $1700 of teh $19,000 is overtime. Overtime was counted before in some of our past dealings. Same with the second job. The state of Maine uses any and all income, and our past judgement had the income from both his jobs. I just don't know how to prove that he is still working there. I do have an e-mail from him from about 2 months ago stating that he was workign his other job. I don't know if that will be enough.

As far as the information that was put in about us trying to come up with an agreement regarding child support, it is not on the motion itself, but attached to it in the form of the child support affidavit - should the objection to this comment be placed within the body of my objection to his motion? And, he was the one that moved and made the distance. I had told him that he moved, he had to cover the cost. (He moved to be closer to his girlfriend)

Thanks for the input and insight, it's greatly appreciated.

 

[nextwife]

According to the 2 pay stubs that he submitted with this, at the end of June his gross pay was $19,023 - so, since this was his income for 6 months, his income for a full year should be about $38,000. Wouldn't that be what should be used? Also, the $32,000 is not a substantial change from the $35,000 he had listed on our original court order. This $32,000 also does not include income from his second job, that he has had for the past 5 years. !

Actually, depending upon what field he is in, NO, the pay stubs mightr NOT reflect what a full year could be. I'm in real estate for example, in WI, and I make FAR more the first three quarters than the last, due to a big drop in commissions toward late summer.

Early in my career, I sold fine jewelry. About 80% of my annual commissions were earned from transactions that were initiated during the Thanksgiving to Christmas sales cycle. Most holds and layaways were picked up just before christmas, including many engagment rings ordered throughout the yeaR. Thus, the January commission payment was almost a years worth of sales. And no other commission check all year would come near that amount.

Anyway, NO, not all of us make exactly the same amount each month all year. Also, not all of us make as much the next year. I've had higher and lower income years- it's just the nature of some businesses that they go both up and down in income. It is unrealistic, and maybe unfair, to ONLY want to use the most up years, and not to also realize that down years are part of the business cycle for certain industries.

 

[angeleyzad]

Actually, depending upon what field he is in, NO, the pay stubs mightr NOT reflect what a full year could be. I'm in real estate for example, in WI, and I make FAR more the first three quarters than the last, due to a big drop in commissions toward late summer.

Early in my career, I sold fine jewelry. About 80% of my annual commissions were earned from transactions that were initiated during the Thanksgiving to Christmas sales cycle. Most holds and layaways were picked up just before christmas, including many engagment rings ordered throughout the yeaR. Thus, the January commission payment was almost a years worth of sales. And no other commission check all year would come near that amount.

Anyway, NO, not all of us make exactly the same amount each month all year. Also, not all of us make as much the next year. I've had higher and lower income years- it's just the nature of some businesses that they go both up and down in income. It is unrealistic, and maybe unfair, to ONLY want to use the most up years, and not to also realize that down years are part of the business cycle for certain industries.

Wel, his field is firefighter/paramedic, and he works a full week every week. So the issue on commissions etc. does not apply in this case. Likewise about him not making as much one year to the next. His income will only increase, unless he drastically reduces his hours, but then that would be a voluntary change on his part.

 

[angeleyzad]

Okay, I was looking further at this motion, and I came up with another question. Is he supposed to basically spell out what it is that he wants? In other words, one part of the motion is to modify the parent-child contact, because the distance he is living away is not practicable. But, he does not say what it is that he wants for a schedule. How do I respond to that? I mean, if it said that he wanted more time, or less time, and he spelled out what it is that he wanted, then I would know how to answer. But in this case, his request is extremely vague, in which all he says is that he wants a change.

I mean, I don't want to give up any of the time that I have with the boys now (meaning that he shouldn't be getting any more time than he has,...unless of course he were to move closer to us so that it would be possible; But, I don't want to take any of the time that he currently has away from him).

Any insight on a response to this would be greatly appreciated.

 

[Ohiogal]

Okay, I was looking further at this motion, and I came up with another question. Is he supposed to basically spell out what it is that he wants? In other words, one part of the motion is to modify the parent-child contact, because the distance he is living away is not practicable. But, he does not say what it is that he wants for a schedule. How do I respond to that? I mean, if it said that he wanted more time, or less time, and he spelled out what it is that he wanted, then I would know how to answer. But in this case, his request is extremely vague, in which all he says is that he wants a change.

I mean, I don't want to give up any of the time that I have with the boys now (meaning that he shouldn't be getting any more time than he has,...unless of course he were to move closer to us so that it would be possible; But, I don't want to take any of the time that he currently has away from him).

Any insight on a response to this would be greatly appreciated.

It is notice pleading. he doesn't have to spell out exactly what he wants. You need an attorney because no one on here has the time to teach you the basics of the law.

 

[angeleyzad]

It is notice pleading. he doesn't have to spell out exactly what he wants. You need an attorney because no one on here has the time to teach you the basics of the law.

I do plan on getting an attorney, but unfortunately, I can't do it until after the 21 days is up - I would be able to get help from my family, but unfortunately, they're waiting on teh same money that I am, so that's out of the question. I was going to submit my response to the motion on my own, then have my lawyer for the trial.

I just want to be sure that I am wording the motion correctly, I think that I have the first/last part correct;

One question that hopefully you (or someone) can answer for me, is do I have to give the proof in my answer why I think his motion should be denied? For child support to be changed, my proof would be that according to his paystub, his yearly income for this year would total to $38,000 for the one job, and unsure for the second job, as he did not include a paystub from that job. (I have proof as of about 2 months ago he was still working there). His income change would be less than a 10% change, which does not meet the 15% change requirement for the state of Maine. He voluntarily created the added distance and time for traveling, in doing so, the burden of that added travel time/distance should be his responsibility.

I am just not sure what sort of proof I could use for the visitation schedule to change, as I know that he doesn't want less time, he wants more, but there is nothing spelled out, so I do not know what he is asking according to the motion.

 

[Ohiogal]

I do plan on getting an attorney, but unfortunately, I can't do it until after the 21 days is up - I would be able to get help from my family, but unfortunately, they're waiting on teh same money that I am, so that's out of the question. I was going to submit my response to the motion on my own, then have my lawyer for the trial.

I just want to be sure that I am wording the motion correctly, I think that I have the first/last part correct;

One question that hopefully you (or someone) can answer for me, is do I have to give the proof in my answer why I think his motion should be denied? For child support to be changed, my proof would be that according to his paystub, his yearly income for this year would total to $38,000 for the one job, and unsure for the second job, as he did not include a paystub from that job. (I have proof as of about 2 months ago he was still working there). His income change would be less than a 10% change, which does not meet the 15% change requirement for the state of Maine. He voluntarily created the added distance and time for traveling, in doing so, the burden of that added travel time/distance should be his responsibility.

I am just not sure what sort of proof I could use for the visitation schedule to change, as I know that he doesn't want less time, he wants more, but there is nothing spelled out, so I do not know what he is asking according to the motion.

Proof is for the trial. The motion has to be honest and truthful but you prove it at trial.

 

[GrowUp!]

Wel, his field is firefighter/paramedic, and he works a full week every week. So the issue on commissions etc. does not apply in this case. Likewise about him not making as much one year to the next. His income will only increase, unless he drastically reduces his hours, but then that would be a voluntary change on his part.

The part I bolded in your response is not correct. You're making an assumption, unless there is specific language in the contract with the city that firefighters receive a specific percentage increase each year, there is no guarantee his income will increase. Most employed people do not have that "guarantee", again, unless it's stated in a contract.

 

[GrowUp!]

I do plan on getting an attorney, but unfortunately, I can't do it until after the 21 days is up - I would be able to get help from my family, but unfortunately, they're waiting on teh same money that I am, so that's out of the question. I was going to submit my response to the motion on my own, then have my lawyer for the trial..

Then what you need to do is be prepared to spend many many hours researching court rules and procedures and state rules of (applicable) procedure. There's ALOT to know and just because you plan on getting an attorney is no excuse. You make a mistake and there's no guarantee that when you retain an attorney that they can correct it -- or will even bother since YOU made the mistake. A pro se litigant has to accept the blame if they make a mistake because they failed to learn procedure. And if your ex has counsel, they could use that mistake against you.

 

[angeleyzad]

Then what you need to do is be prepared to spend many many hours researching court rules and procedures and state rules of (applicable) procedure. There's ALOT to know and just because you plan on getting an attorney is no excuse. You make a mistake and there's no guarantee that when you retain an attorney that they can correct it -- or will even bother since YOU made the mistake. A pro se litigant has to accept the blame if they make a mistake because they failed to learn procedure. And if your ex has counsel, they could use that mistake against you.

Well, I have a meeting with my lawyer on Monday afternoon, I am going to go in there with my response, and see if she can give me some thoughts on it, if I have worded it correctly, or what. Like I said, I will be retaining her, but will not have the money for it until after the 21 days is up. I am going to give my objection to his motion, which is why I am asking questions now - so that I do not put something in it that is wrong.

I appreciate all the input that I've gotten, wether it good, bad, or indifferent.

Thanks!

 

[angeleyzad]

Proof is for the trial. The motion has to be honest and truthful but you prove it at trial.

So, in other words, I should not state in my objection to his motion that his income has deviated less than 10% from our last child support order?

 

[Ohiogal]

So, in other words, I should not state in my objection to his motion that his income has deviated less than 10% from our last child support order?

Is it relevant/ Is this a motion to modify child support or visitation or both? If visitation where are you geting the 10% from? That would go in a memorandum of support with the motion and you would want to make sure you are citing property authority -- cases, statutes and the like.