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Can I ask for an increase in child-support payment if ex-husbands salary has increased or household income has increased?

Westborough, MA |

3 years ago, husband asked for divorce after admitting infidelity. Got divorce....had to sell family home; couldn't afford to keep me, stay at home mom since 2002, and children in it. Living on child support and alimony in an exorbitantly expensive state, I want to know if I can request a modification to the child-support, if his salary has increased since time of divorce? Also, he is remarried to the mistress, built brand new house....enjoying a double income household....can her salary be included in the recalculation; because what would stop ex-husband from claiming limited salary, while wife makes "all the money", as an example?

Attorney Answers 6

Posted

I am sorry to hear about this difficult situation. You can certainly pursue a change in child support based on the increase of income for the payor. While his spouse's income will not be considered, the child support guidelines have an exception if there is a significant difference in the standard of living in households. You should consult with a qualified family law attorney to assess your options. Good luck.

Advice provided is of a general nature to provide guidance. Divorce law is state specific. One should always check the laws in their home jurisdiction. An attorney-client relationship is not intended or established through provided responses.

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Asker

Posted

Thank you for your sympathy and your advice.....its been the same as the other replies....but sadly, mine has been also the same. I must do this on my own ....because child-support/alimony payments do not include an allowance for "attorney fees" I am not able to hire one..... Pretty bleak situation...

Posted

Of course. Call a divorce lawyer in your area, tell him/her the story, and most likely they will file a complaint for modification. As part of filing the complaint, your lawyer will be able to obtain tax returns, bank statements and other financial documentation from your ex. Good luck!

This is intended for general informational purposes only and does not constitute legal advice or create an attorney-client relationship.

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Asker

Posted

Thanks Daniel for your reply....but I have to do this on my own. Limited child-support/alimony payments make it impossible to save any money....for anything, especially attorney fees.... I even had to represent myself in court 1 month ago when he paid his attorney $5k to seek a modification to reduce alimony payments.... he did not win. Now, i must also do this on my own as well.....

Posted

Yes, you may seek a modification based upon an increase in your ex-husband's salary. Unfortunately, his new wife's income will not be included in calculating the support amount, but the court may deviate from the guidelines if there is a substantial discrepancy in the standard of living between the two spouses. I suggest you consult with a family law attorney to assess what your options are. Good luck!

This is intended for general informational purposes only and does not constitute legal advice. The content of this site may not reflect the most current legal developments. Do not consider this site to be a substitute for obtaining legal advice from a qualified attorney licensed in your state or country, and do not act or refrain from acting on the basis of the information contained herein. I am not responsible for any errors or omission in the content of this site or for damages arising from the use of this site under any circumstances. This does not create an attorney-client relationship.

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Asker

Posted

Thank you Catherine, very much....but I am completely on my own with this. You're in Holden so you know Westborough and its prices....and while his support payments are satisfactory say....in my home state of NC, in MA, I am almost at poverty level because of my $2022/mth rental rate. No money to hire an attorney....no savings. So after finding out that I am eligible to to receive an increase, if his salary has increased.....i will just simply email his attorney and ask that this happen. Thank You!

Catherine Taylor

Catherine Taylor

Posted

You are welcome. I suggest rather than just asking his attorney for an increase in child support, you instead file a Complaint for Modification with the court. The form can be found here: http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/forms.html

Asker

Posted

oh wow, really? I can do it totally on my own? I just didnt know how or where to go. I understand his wife's salary cant be added to the the calculation, but I understand if there is a significant difference in living lifestyle, that I can also mention that? I just dont know if there is a file for that? ))

Asker

Posted

Went to the site you supplied, unsure as to what form to print...."joint petition for modification of child support judgement"? but its not a joint petition, correct? its just me

Catherine Taylor

Catherine Taylor

Posted

Yes, you can do it totally on your own, however, since you may be asking the court to deviate from the guidelines, I suggest you at least talk to an attorney. Many attorneys offer free consultations and may be able to provide you limited assistance representation which would keep your costs low. You may also want to call the court clerk's office and ask about the lawyer for the day program, which is free and very helpful to pro se litigants such as yourself. Unless your ex agrees to pay a different amount, you are correct that you will not be filing a joint modification. Use this form: http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/documents/cjd104.pdf. Good luck!

Asker

Posted

THANK YOU CATHERINE!!!!! ))))))))))))))))))))))

Asker

Posted

Wait! one more question?? I have NO family here....i'm from Charlotte, NC. No friends, no family.....and if I could go home tomorrow, I would. When can I !!! Please dont say when the kids are 18.....they must be able to decide at an earlier age....if mom moves, if they wanna go, or stay with dad. Is there an age? I need something to wait for! )))

Catherine Taylor

Catherine Taylor

Posted

You may file a petition for removal with the court, but I HIGHLY suggest that you consult an attorney to assist you with that as it can be a bit tricky. There is no set age. The court will look and see what is in the best interests of the child(ren). Feel free to contact my office if you are interested in my assistance. Best of luck.

Posted

You certainly should file a Complaint for Modification if your ex´s income has increased since the time of the Divorce Judgement. As correctly stated by my colleagues, your ex´s new wife´s income will not be considered in calculating a new child support order; however, you may be able to convince a court to deviate from the child support guidelines.

Further, it appears that you may be alleging that the father is currently underemployed because of his new wife´s income. Child Support Payor´s are always required to work in a position that lives up to their earning capacity. Accordingly, if he is not earning what he should be earning based upon his experience, degrees, etc., this is certainly something that could be argued at a court hearing.

I highly recommend retaining counsel to assist you with this case. Good luck!

Anthony Rao

The above response is NOT legal advice, and is NOT intended to be legal advice. No Attorney-Client relationship is created through the above answer, and any communication between us is not protected by attorney-client privilege.

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Asker

Posted

thank you anthony....for your advice as well, i really appreciate it. I dont believe he makes considerably less than she does....pft, lol he's 14 years older than she is....but, after making me sell our home cause he couldnt afford it, has turned around in the same year and rebuilt a home only $50k less than our home....affords an attorney at $5k, vacations....etc. when I now work 6 hours a day, 5 days a week, in order to pay for food and gas for me and my children. Clearly not an even balance....he also is supposed to carry the children under his health plan? well, his wife is no doing it.....while i?, have no health insurance

Posted

You can request a modification of child support. Although the standard for a change has always been a material change of circumstances, recent case law placed modification on whether there will be a difference through the child support guidelines amount. As you may know, child support is determined through the application of the child support guidelines. What you may not know is that the child support guidelines were revised as of January 1, 2009. Whether that was before your current order or after is unclear and may have an effect of the current amount. You can only attack his spouse's income if you can show that he is underemployed because of her income.

All of this being said, his point of defense could be your alimony. Alimony reform, instituted last year, may allow him to seek a modification as a counterclaim to any modification you seek. Talk with an experienced family lawyer to review your options and potential exposure. Familiarity with the revised child support guidelines and Alimony Reform Statute will be critical to the analysis.

Lloyd Godson www.bostonllp.com

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Daniel Dufresne

Daniel Dufresne

Posted

Kudos to Attorney Godson for referencing Morales, an SJC opinion which just came down last week.

Asker

Posted

We were divorced 3/31/10 so after 2009. And he just took me to court 1 month ago in order to revoke alimony....the judge yelled at his attorney and said no, she gets it for total 5 years since they were married for 10....she has 2 years left. His spouse doesnt make more than he does....but when 1 household affords vacations, a newly built home and a new bmw....and the other, mine doesnt even have health insurance .....i am a stay at home mother....children on bus at 830am and off at 3pm....I am daycare and I have to work to make enough money for us to eat cause support payments dont cover that. Weekly living expenses are $1300 and support payment is $864....its simply a numbers game and in 3 yeasrs i have not asked for an increase based on any salary increases. im a saint

Asker

Posted

anyone wanna do a probono case? cause you wont find a better candidate! To make it worse? I am not from the Marvelous state of Ma....am from the good weather, affordable and perfect people city of Charlotte , NC. No family, no friends.....and since the divorce agreement caters to 2 adults with family friends in the same state, I am alone on half of Christmas Day and every other holiday.....cant travel home....not enough time and heck, no money....support payments done give a travel allowance ))) Waiting for kids to get old enough to say.....we're not staying with you dad, we're going with mom....or for him to die on a travel trip - then i get a life insurance policy and I can get the heck out of this deplorable liberal state

Posted

If it has been more than 3 years, you have the ability to request a modification of child support. Whether it is a good idea is a very different question. The new spouse's income is not included in the Guidelines (I have included links below). Under the new alimony statute, it may or may not be to your advantage to start court proceedings. The real kicker in the new law is G.L. c.208, s.53(c)(2), which effectively eliminates alimony whenever there is a child support order and the combined income of both parents is under $250,000.

So you really should consult with counsel before you decide to file for a modification. You should have ready copies of your divorce agreement or judgment, copies of the financial statements you each filed at the trial or hearing, your most recent tax return and paystubs, and (if he is obligated to disclose them to you, as sometimes happens) your ex-husband's tax return.

This message does not contain confidential information, is intended for the discussion of abstract legal issues, and does not create a co-counsel or attorney-client relationship in the absence of a written fee agreement. Do not post a reply to this message with confidential information. If you wish to communicate confidential information, you should contact me directly at karpf@vadimuslaw.com; I would be happy to offer a free consultation concerning your case.

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Asker

Posted

Thanks Stephen for your reply.....as you can see from the previous replies and my comments to them, all this is known....Im certainly fine with loosing alimony early, I have it for another 2 years, as long as the increased child support payment is more than the now total child support and alimony payment combined. I am a stay at home mother.....as mentioned in the original question so the only tax returns that I have are on the alimony payment....and we of course have all of the original documentation. I however do not have a copy of his most recent tax return and since I am not employeed, I do not have "paystubs". Yes, the combined parents income is under $250k as I do not work and he does not make that much money. $150k maybe.....but my child-support payment is not based on a salary of $150k, its based on $100, this I know for a fact...... And as everyone has previously stated.....if I had money to consult with and hire legal council, I wouldnt be on this site or asking for additional support from my ex-husband; I cant even pay for basic living expenses based on the current support payments....which is the only reason I am seeking an increase; not so I can go on vacation....which he does often as well as has plenty of funds with which to hire an attorney, by a new bmw, and build a brand new house for $420k while I have no health insurance, do not go on vacations and can not afford an attorney. Ha! my friends at hom (Charlotte, NC) say what about probono work? I laaugh and tell them...."this is the liberal and overpriced state of MA, no one does anything for free"

Stephen Daniel Karpf

Stephen Daniel Karpf

Posted

You are not entirely without options. There are attorneys like myself (unfortunately, not many) who offer free consults, have a sliding scale fee structure and/or are certified to do Limited Assistance Representation ("LAR"). LAR is a program where attorneys can now write pleadings and help with discovery without entering a general appearance in a case and/or appear for single dates (e.g. only for the pretrial conference) in Court if you want without having to appear on every single court date. These help keep costs substantially down, although of course they increase the burden on yourself. I can tell you that if you ex-husband obtained financing for building the new house, there should be documentary evidence, easily available after the modification is filed and quite admissible, to discover what his current reported income is - and people tend to 'over-report' their income on loan applications rather than under-report. Your response was extremely detailed; this is a public web site. I strongly recommend that if you want to discuss this further, that you contact attorney(s) directly by phone or email for consultation.

Asker

Posted

Thank you Stephen for you candor and additional information regarding your LAR certification, as this is something new to me. I'll contact you off site.

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