If ex has lied/lies about self employment income over past 4 years, Will the court retro and recalculate it if I can prove it??

Asked almost 2 years ago - Colorado Springs, CO

As of 9/2008, I gained full custody of my 2 children, at the time I was 5k behind in support. Court ordered ex pay $150 month to herself til arrears exhausted. At Court ex stated she is unemployed, I knew she isn't. She is contract/self employed. My best est, she earns 3k/month. Is now 11/2012. Since arrears she has NEVER paid. Hesitant to file a Motion/Modify/CS, assumed she would lie and had no proof. I filed the Motion and Motion to Compel 10/2012. 3 days ago I recieved response, ONLY included pay stub copies for 2012 and hand written self claimed "deductions". I asked for 3yrs, tax, pay, bank etc. Checks state she has earned 3200/month from 1/2012, and 5700/month as of 9/2012! Will Court subpeona 1099 from employer she contrats with? Will Court allow deductions without supporting docs?

Attorney answers (4)

  1. Stephen Clark Harkess

    Contributor Level 20

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    Answered . The Court will not subpoena documents. You and your attorney are responsible for doing that. If you are not getting whta you are entitled to you need to continue to pursue the motion to compel. Generally, the Court will not allow any deductions as child support is calculated based on gross pay, but you will need to be prepared to make the appropriate arguments at the hearing. You may want to ensure that you have an experienced attorney on your side as you move forward.

    You can reach Harkess & Salter LLC at (303) 531-5380 or info@Harkess-Salter.com. Stephen Harkess is an attorney... more
  2. David Littman

    Pro

    Contributor Level 18

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    Answered . If this issue is important to you, consider retaining a family law attorney to work with you. Mr. Harkess is correct- it is not the court's job to produce evidence, it is your obligation. If you cannot prove an important fact, you will not succeed.
    Good luck to you.

  3. Daniel Nelson Deasy

    Contributor Level 20

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    Answered . My colleagues have nailed this situation with their respective answers. A court will indeed address fraud, but you have to prove your case.

    You need a family law attorney to prove your case.

    Good luck to you.

    In no way am I offering you legal advice, and in no way has my comment created an attorney-client relationship.... more
  4. Rebecca Mccormick Pepin

    Contributor Level 12

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    Answered . Proving a person's income when he/she is self employed is very difficult. As my colleagues said, it's your responsibility to do so, however you do have the right to subpoena documents and if you request the subpoenas, the court clerk will sign them for you to make them valid. To prove income when a person is self employed, look beyond the traditional pay stubs. Request copies of all bank statements, (if the person mingled what should have been a business account with what is a personal account, it's easier to argue the expenses were not for business purposes). Request copies of monthly bills - mortgage, utilities, car payments, credit card payments etc - a person claiming a low income, but paying high expenses is not credible.
    The statute defining income is CRS 14-10-115 and DOES allow business expenses to be deducted from a self employed person's gross to determine the Adjusted Gross income to be used for child support purposes.
    I wish you well.

    This legal information is provided for general legal purposes and does not establish a client-attorney... more

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