I currently pay child support through Probation for my son. During the court process, my ex claimed that she had no training to obtain employment, although she has an Associates Degree for nursing. She never worked as a nurse but does have the education. She has since gone back to further her education even more so (although still not working). At the time of court, my son was not yet in school so I didn't push the issue. He is now in 2nd grade (full time) so there is no reason my ex cannot go out and find work. Minimum wage was imputed to my ex as income, however, I am wondering if child support could possibly be recalculated based on her potential to earn more. Surely if I were to quit my job tomorrow, my child support would be calculated based on my potential to earn.
Yes you can file such a motion although it may be a bit premature until she finishes schooling. You may wish to impute income at her prior earnings level, and then reopen it when she's finished with schooling.
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Child support can always be recalculated, but depending upon the process that was used to decide the issue to begin with, you may or may not be able to make certain arguments. If your child support was set during your divorce and you have a property settlement agreement, then you may be bound by those terms. If you were not married and have an "FD" docket case, there is a different procedure. Before you make the motion, you may want to consult with an attorney; you want to time your motion so that it is not premature.
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Child support may be revisited whenever there has been a substantial change in circumstances. Typically, this is determined to occur where one parent experiences an increase or decrease in income greater than 5% and the change is more than temporary in nature. However, a parent seeking to revisit child support because of a decrease in earnings or loss of employment has the obligation to demonstrate that he or she made a good faith effort to find employment at a comparable earning level. If he or she is unable to do so, a court will not likely grant relief.
Moreover, judges are required to impute income to any parent that the judge determines is willfully unemployed or underemployed. In other words, a parent cannot quit a job, refuse to get a job or take a job earning lesser pay simply to avoid support obligations. In such a case, the judge will likely impute income to one or both parents commensurate with what the judge determines to be their earning capacity.
Other changes in circumstances warranting a recalculation of child support include, but are not limited to, instances where the cost of day care changes, where other children are born or child support orders put in place or changes to the parenting time schedule.
It is important that you discuss the specific facts of your case with an experienced family law attorney to learn what your rights are, what to expect when you go to family court and whether you may be eligible for a child support recalculation.
Additionally, below are links to articles and information that may assist you with your case.
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