Child Custody And Divorce: Free Legal Advice
Child Custody And Divorce: Free Legal Advice
Child Custody And Divorce: Free Legal Advice
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Several things need to be brought to your attention, with regard to the Michigan Child Support Guidelines:
1. The first, and most frequent answer that I have to give, is YES. OVERTIME COUNTS! ALL OF IT! A party's overtime will be averaged into the total, by virtue of the fact that judges (and Friend of the Court) prefer to adjust or set support based upon a W-2 form from the previous year or years (some judges use last years W-2 only, some judges use the last two years or three years, and average them).
2. The next most frequent point I have to make to my clients is that THERE IS NO RETROACTIVE MODIFICATION OF SUPPORT . This is very important. If you want a modification, up or down, FILE NOW. IF YOU DON'T FILE NOW, IT'S TOO LATE. FILE NOW!. Every judgment of divorce and/or paternity-support, has the language in it that advises you that there is no retroactive modification of support. People just don't read the language, or just don't understand it, or just don't remember it. Now you do. Here's what "NO RETROACTIVITY" means to several different persons:
a. H is paying, and W is receiving, $100 each week for the support of one child, because H is a factory employee, and he has been for many years.
All through March, April, and May, the checks come in.
On June 1, the factory closes, without warning, and everyone is sent home.
From June 1 to October 1, when H is arrested for non-payment, H has income of zero. H finally borrows money from his mother, hires a lawyer, and the lawyer files a motion to reduce support on October 15.
On November 1, the judge hears the motion, and says "Well, Mr. Attorney, you are correct, your client can't pay what he doesn't have, I will reduce his support to five bucks a week, until he becomes employed again."
The attorney says "Judge, can this be retroactive until June 1, the date my client was let go from his employment?"
The judge says "No, I can make it retroactive until October 15th, the date the motion was filed, but I can't make it retroactive any farther back than that. You should have filed sooner, because there is no retroactive modification of support any longer. I wish I could help you, but I can't. Support is set at five bucks a week, effective October 15th of this year."
And that's that. The child support stands, and is still due, for each of the weeks from June 1 until October 15, at a rate of $100 each week. Sooner or later, that arrearage is going to be paid. In full. The moral of the story: If you get fired on Monday, file for modification of support on Tuesday, because there is no retroactive modification of support. You get retroactivity from the date you filed your motion, and no farther back than that. Period.
b. Suppose the same people, and on November 15th, H gets hired by a different factory, and his pay is DOUBLE what is was before: support is still five bucks a week. If W files to modify support on January 1st, the date she first learns about it, she can get the raise is support retroactive to January 1st. If W doesn't file until March 1st, she can only get the raise in support retroactive until March 1st, the day she filed, even though H is taking home a pile of money. That's the way it is: there is NO retroactive modification of support. If you're entitled to a change in support, either up or down, file your motion now. Each week that goes by is HISTORY. File now.
In addition, you should know that the use of the Child Support Guidelines is mandatory. The judge must follow the guidelines, unless the judge is prepared to express a reason, on the record in open court, for NOT following them. There are occasionally situations where the judge can be convinced not to follow the guidelines: the parties may explain to him, in open court, that the guidelines call for $95 dollars per week, but that the child is attending a private school, and H is willing to pay $110 per week, as his contribution to the child's tuition at this private school. There may be occasions where the judge can be convinced to order, because the parties have agreed, less than the guidelines would allow: the usual situation is the result of H crying that he "just can't afford it", and W finally agreeing, in what was then, and still is now, a semi-abusive relationship. First H complains, then cries, then perhaps bullies, and then does it all over again, and, sooner or later, W agrees to do it his way, and H gets to pay $70, when the guidelines call for $95, each week. Nice try, buddy. This is NOT going to get past the judge. The judge will explain that the use of the guidelines is mandatory, and support will be set at the $95 called for by the guidelines. If there is obviously a setoff that can be worked out, arithmetically, to "pretty close", then the judge will likely approve it: "Judge, the guidelines would call for support at $105, but my client is walking away from fifteen thousand dollars in house equity, Wife doesn't need to pay him that amount, ever, it's her house now, free and clear, and the parties have agreed that he will pay $70 each week, rather than the $105 called for by the guidelines...", well, the judge will approve that one. For the most part, though, the use of the figure for support that is dictated by the Child Support Guidelines is mandatory, and deviations from that mandatory figure are going to be scrutinized by the Court.
Good luck with it.