My husband had an affair and child as a result of the affair. She took us to court. We do not have a lot of money but her attorney managed to break down his income so much that it made it look like he makes a lot more then what he does. She got over $700.00 per month in support plus back pay for 1 year and half of her attorney fees covered $4000.00 and half of child care. They did an avg income over 2 years when calculating. This last year he took a pay cut and it reflected on his W2 for 2013, he made $12,000 less. Can we argue the fact doing an average is unfair. Since they didn't take that pay cut into consideration, and used the average, we are paying out more then normal. We stand to loose our home and everything we worked for because of this. I can't feed my kids some weeks.
Divorce / Separation Lawyer
You might have a way out of this mess, but the reality is that your attorney should have caught this at the time of the hearing. Generally speaking, you don't get "do-overs" in court.
You've got a 30-day window in which to ask the court to reconsider its ruling. You have to allege more than just merely asking the court to take another look at your case in the hopes the judge will change his mind. You had your day in court and it sounds like your attorney blew it.
The rule is laid out like this: "In a motion to reconsider, a party should bring before the court newly discovered evidence, changes in the law or errors in the court's prior application of existing law. Trial courts should not permit litigants to stand mute, lose a motion, and then frantically gather evidentiary material to show that the court erred in its ruling."
You might have a case of malpractice against your attorney.
You also might have a shot at undoing the damage and getting a better order in place. The court may set child support based on income averaging in certain circumstances, but the court cannot just use income averaging willy-nilly or in every case -- there has to be a reason. In your case, the court MAY have gotten it wrong and there may be a basis to ask the judge to reconsider.
You haven't posted enough information here, however, for an attorney to determine whether you could bring a request to reconsider, let alone win it. You'll have to call an attorney who knows about this sort of thing (unlike your last attorney, apparently) to talk this through.
3 lawyers agree
Divorce / Separation Lawyer
A modification in child support can be requested. However, if there has been no change since entry of the order, then a reduction could be denied. The reduction in income should have been considered at the time the order was entered. Depending upon how long ago the child support order was entered, the opportunity to seek reconsideration may be gone. On the brighter side, if the order was entered prior to 2014, your husband might be able to return to court seeking a modification based upon his current pay. As you can see, there are several options. Your husband should speak to a different but experienced family law practitioner in your area to receive guidance and to discuss options. As Wes, said, you do not get fo-overs so there must be new information to bring to the court.
Although AVVO describes this site as providing free legal advice, it is really a simple Q&A forum. The volunteer attorneys provide general answers. No specific legal advice is given here and no attorney-client relationship is established. For precise direction and legal advice, please consult in person with an attorney in your area. Be sure to bring all relevant paperwork with you.
Child Custody Lawyer
there are five appellate court cases that say in cases of fluctuating income, average the last three years to set support. you may think that unfair, but it is the law.
one result of sexual relations is children. children are expensive and are legally entitled to support from both parents. retro to the date of birth is common in paternity cases.
rather than get all upset at the court and your lawyer, have you given any thought to the fact that your husband caused all this, not the judge, not the lawyer?