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My oldest daughter has just been emancipated. What are good strategies to negotiate CS for my remaining daughter?

Newton, MA |
Filed under: Family law

My oldest daughter has just been emancipated. My ex-wife is filing a Complaint for Modification to adjust the child support for my other daughter who is 20. With the current guidelines I will end up paying even more than I do now even though it is only for 1 child instead of two. Can I threaten to file a complaint for joint physical custody and no child support as leverage when we negotiate a new Child support number. The idea is that even though I will never get physical custody she will have to pay legal fees to defend against this. She may be more willing to agree to my number and avoid these fees. I am pro se so it won't cost me much.

Attorney Answers 3

Posted

The Child Support Guidelines are a presumptive amount that you must pay in child support. In order to pay less, you have the burden of proof of proving why you should pay less in child support. Additionally, to file a modification of custody, you need to show a material and substantial change in circumstances that would warrant a change in custody. I would highly recommend you speak with an attorney who specializes in Family Law to determine how to proceed. Good luck!

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Asker

Posted

I have had approx. a 33% increase and my ex has also had a substantial increase since child support was first negotiated 10 years ago. The new guideline calculation actually comes out to be $27/week higher with the one child than what I previously paid for 2. I think I should be paying substantially less since my oldest daughter (who just graduated from college) has not lived at home for last 2 years and received no support from her mother for summer rent (Bos and NYC internships) or room and board while going to school. During that time, I paid about $21K to her mom and she used it as tax free income. My other daughter also only lives at home during the summer and goes to college the rest of the year. In addition to child support, I pay 1/3 of a state tuition for each child. Mom matches that but refuses to apply any of my support toward their room and board at school. Therefore my daughters have had to take larger school loans to make up for this. Again the support is used as tax free income. She makes $110K and I make $125K so we are in the same ballpark. She has no problems maintaining her domicile but I am struggling and need relief. I am into home equity loans and have $250 in my savings account. I think I can present this disparity to a judge and get some relief. Certainly not be ordered to pay more.

Talia N. Simonds

Talia N. Simonds

Posted

Unfortunately, for parties who have not modified their child support since the new Child Support Guidelines came out in 2009, it is not uncommon to see the obligation go up, especially if it has been 10 or more years since you have modified the child support order. As I stated in my answer, the child support guidelines amount is the presumptive order. You really should speak with a family law attorney about your case. Good luck!

Posted

I think some judges do not look with favor upon litigants who file claims involving custody of children in order to leverage for something else. You know, pawns and all that. I assume that you have a greater income than you had the last time child support was set - and that is why you believe you will end up paying more. Otherwise, it doesn't make sense. And if you make more maybe you should be able to pay more. Or, maybe you ran the numbers incorrectly and should re-do it.

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Steven Edward Zlochiver

Steven Edward Zlochiver

Posted

To clarify - I suppose there might have been an increase just because of the implementation of the new Child Support Guidelines in 2009 which caused increases for relatively low income payors but, of course, benefitted higher income payors. If that is so, I am sorry about the assumption that you have a greater income. Although, it does seem to me that the emancipation of one of two children should cause a decrease even with the use of the 2009 Guidelines. Can you tell me why you would end up paying more, now?

Asker

Posted

I have had approx. a 33% increase and my ex has also had a substantial increase since child support was first negotiated 10 years ago. The new guideline calculation actually comes out to be $27/week higher with the one child than what I previously paid for 2. I think I should be paying substantially less since my oldest daughter (who just graduated from college) has not lived at home for 2 years and received no support from her mother for summer rent or room and board while going to school. I paid about $21K to her mom and she used it as tax free income. My other daughter also only lives at home during the summer and goes to college the rest of the year. In addition to child support, I pay 1/3 of a state tuition for each child. Mom matches that but refuses to apply any of my support toward their room and board at school. Therefore my daughters have had to take larger school loans to make up for this. Again the support is used as tax free income. She makes $110K and I make $125K so we are in the same ballpark. She has no problems maintaining her domicile but I am struggling and need relief. I am into home equity loans and have $250 in my savings account. I think I can present this disparity to a judge and get some relief. Certainly not be ordered to pay more.

Steven Edward Zlochiver

Steven Edward Zlochiver

Posted

I'm going to assume that you ended your divorce with a negotiated Agreement rather than with a trial that resulted in the judge issuing child support provisions in a Judgment. So, much depends on what you agreed to. It may be that there was no mention of payment toward college and you are voluntarily paying for college; or, if it was mentioned, it might have said something like the parties shall pay according totheir ability to pay. In either of these situations, you might be able to stop paying for college, but, expecially with the latter kind of provision, there might be triggered a modification claim by her. If she does that, you might be able to defend by showing why you can't afford to pay for both child support and college. If the Agreement says you have to pay child support and for college you can try to modify by alleging a (real) change in circumstances (perhaps unexpected and necessary costs of new family, inflation, or whatever might be appropriate - and real). If it is a valid and provable claim you may be able to argue that what you pay for college should be a payment in lieu of child support. Child support payments for a child in college are considered to be reasonable because it is assumed the child is at home during vacations and will still need shelter that must be maintained year-round (and will food). By the way, a recent appellate decision, which you may be aware of, said that the satute that concerns child support should be literally appled and any change in the amount of child support by applying the Child Support Guidelines - even if it is only a dollar - can lead to a changed order. But that doesn't mean that you cannot oppose any such change by alleging a change in circumstances (this might not have anything to do with your situation, but I think it's important to know how easily an amount can be ordered to be changed).

Asker

Posted

Thank you so much Steven. Good input

Posted

Bad idea. First of all the issue of "custody" doesn't apply at their age. It goes to primary residence. Second, the child support guidelines do not apply after 18. The child support statute regarding emancipation does apply.

To properly review your situation, more facts are necessary. For example, are you covering any of the costs for the children such as college? Is there a potential in your future for an alimony order?

You need an experienced lawyer to look over your current order (agreement) and discuss the current state of the law to uncover any unknown pitfalls and properly prepare strategy.

I would strongly recommend a consultation.

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Asker

Posted

Thank you for your advice. Someone (not a lawyer) suggested the custody angle and I thought it was a bad idea and my daughter could just say no. Thanks for the guidelines only applying to age 18 . I did not realize that.

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