My ex who is on a leave of absence, I suppose temporary, filed a Petition for Child Support Modification in January 2014 which will hopefully go before a judge sometime in April 2014. In the meantime, my ex hasn't made a single child support payment in 2014. Is he in contempt of existing child support order or is it lawful that he stops making payments until his petition is heard. In addition, he has listed some expenses which I know are not true while declaring $0 income.
Family Law Attorney
No he is not allowed to stop paying until the trial on the modification. The order that is in place is still in effect and he should be honoring it. While the court can make the modification retroactive, the child support is not going to be reduced to zero. So your ex is going to have arrears.
The question is whether his non payment is willful and if so, it is contempt. If he has assets, then he needs to be using them to pay support. When determining a contempt purge payment, a court can look at all assets, including retirement accounts, etc. Also if he is not using diligent efforts to find a new job, then he could lose his modification request.
1 lawyer agrees
Family Law Attorney
Every jurisdiction has differing local rules on obtaining relief on a temporary basis while you are waiting for the Petition to Modify to become ready for court. As an aside, I doubt very seriously that his Petition to Modify will be heard by April (unless one of you has set some kind of hearing on it already.)
He can stop making payments at any time. The courts do not take action on the failure of someone to pay child support unless the other party has filed a motion for contempt/enforcement. Sometimes, it is wise to file a motion for contempt in these situations and sometimes it is not a good use of resources to do so. The individual facts in your case would need to be reviewed by an experienced family law attorney in order for advice that is pertinent to you can be given.
His financial affidavit can be a good tool for a lawyer in discovering his true current income. If you consult with someone, make sure to bring all of the pleadings he has filed as well as the original final judgment.
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Divorce / Separation Lawyer
I agree with Mr. Tyson for the most part but want to make it clear that the modification can only be retroactively applied from the date the petition to modify was filed and going forward. Your ex cannot get relief for child support owed prior to filing for the modification. The court can impute minimum wage to him when they calculate how much child support should be, meaning they'll pretend that he's at least getting that much each month. Good luck!
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