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My x-husband work in Vegas and gets a paycheck but he doesn't claim all his tip how do I get him to pay and he makes like 10,000

Garden Grove, CA |

We have divorce like 2 years and he always pays 160 and court order is 600

Attorney Answers 6

Posted

I've shared your question with the family law forum, where your question may be seen by more attorneys who practice in this area of the law.

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Posted

My first recommendation is to speak with a local attorney to discuss the details of your situation privately and to obtain appropriate advice. If you cannot do that for some reason, and if your ex is in arrears (which is sound like he is), you can seek garnishment from his paycheck by contacting your local family court and seeking assistance for child support collection. You can find attorneys in your area by searching among the profiles here on AVVO. Good luck!

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Posted

Without retaining an expert to testify about the cash tips somebody working in your former husband's line of employment would make, you are going to have to show discrepancies between tax returns, bank statements, paystubs, and expenses. By lining up the different income levels shown by each - your husband will lose his credibiilty and you will be bolster your arguments.

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3 comments

Scott Charles Maccabe

Scott Charles Maccabe

Posted

With the divorce about two years ago, the economic cicumstances could very well have changed between then and now. Following the advice of filing a contempt leaves you as the charging party with the burden of proof. That burden is not on your former husband in a contempt filing brought by you.

Babak Robert Farzad

Babak Robert Farzad

Posted

The charging party always has the burden of proof but only to the extent of CCP 1209.5. All she needs to show is a valid underlying order, his knowledge of the order and noncompliance. She doesn't have any burden to show he has the ability to comply. If he wants to allege an inability to comply, then that is HIS burden of proof, not hers because it is an affirmative defense. If he is putting gas in his car, food on his table and spending money more than $100.00 per month (what he is paying her), then he has the ability to comply with the order and, at a minimum, pay more than $100.00 per month that he is paying. Child support takes priority over nearly all other debts.

Scott Charles Maccabe

Scott Charles Maccabe

Posted

All true, but whether it is child support or spousal support - the question does not specify and I do not believe it would be a relevant point even though the assertion of priority is correct. The ability to comply still needs to be covered (affirmative defense or not), and the issue is whether two years is significant or not. True that the court at one point two years ago found ability, but do the McCarty and Mery cases support that continued finding as time has passed now. Separately, the decision needs to be made whether the contempt filing will serve her purpose and there needs to be a better understanding of all the facts and if the case is being handled by the Department of Child Support Services or not as other remedies might be pursued..

Posted

You would have to prove his income based upon other evidence.
A review of his financial records could help a great deal . Does he deposit cash? Pay his bills with money orders? Spend more than he makes?
Under reporting income is a common problem. A forensic accountant would help but that is expensive. There may be enough in his financial records to prove his income. I suggest consulting with a family law attorney to get more specific information for your state
Good luck!

The information contained in this response is general information and is not legal advice. Nothing contained in this response should be construed as legal advice or creating an attorney-client relationship between the attorney and the reader. An attorney-client relationship may only be created by express representation agreement between Glenn Doyle of Doyle & Doyle, PA and Client.

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Posted

You have an order for $600 per month. That means the court has already determined he has the ability to pay that. You file a contempt action and it is his burden to show that he doesn't have the ability to pay. You subpoena his employment records and, unless his employer is assisting him with committing tax fraud, you should get the answer you need. Your case isn't big enough nor do I believe the facts merit an expert witness and you likely cannot afford one.

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Posted

I assume that you live in California and the divorce is in California. That creates a difficult situation in terms of evidence. California subpoena power does not run to Nevada without significant motions and applications to the court. Likewise, you have to have jurisdiction over witnesses to subpoena them.

Your situation is like so many others. You have to ask yourself whether or not you will be putting good money to go after bad. In other words, if you were to hire a private investigator, hire an attorney, or do significant discovery, would it lead to a result that justifies the outlay of cash to attempt to prove his income.

It is unlikely that one of the ways you can approach his income is to show what his expenses are. If he has more expenses than he claims on his income, and no corresponding debt on credit cards or loans, one might say that he earns what he spends. This is an approach that may get you sympathy, but may not be sufficient proof to show his income.

You have not stated whether the support is spousal or child. If it is child support, you can go to the local Department of Child Support Services and have them enforce your California order for free. They have many remedies that private attorneys do not. You could do a wage assignment on his paycheck. I believe that all states have to honor a wage assignment from another state. Those are some suggestions. I would urge you to consult with an attorney, at least on a consultation basis, to see if he/she could give you other suggestions when he/she understands the facts better.

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