I am sorry to hear that you are dealing with this situation. Unfortunately it sounds like you did not make it to a judge. Most judges will require that the person prove the disability by actually being on disability through the government. There are ways a skilled family law attorney can prove that he is not working up to his potential. You should consult with a qualified family law attorney to give you more guidance. 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.
I am sorry you are having to deal with this difficult situation. Disability may be used as the basis for a modification of an existing support order, and may or may not completely eliminate his support obligation. If your ex husband is able to work in some capacity, but is choosing not to, the judge may attribute income to him that he is not earning, but has the potential to earn, and then use that figure for calculating the proper amount of support. I would contact a family law attorney to discuss the specifics of your situation. Good luck!
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There are two factors to consider in your situation. First, you need to gain the fullest understanding of what his income actually is. There are several things that count as income, and according to the Massachusetts Child Support Guidelines, income includes "insurance benefits, including those received for disability and personal injury...". Therefore, if he claims disability, your attorney should ask that he provide some proof of that - possibly through collecting disability income from the government. If he does that, then the income he receives can be used to determine the amount of support he owes.
The second thing to consider is to ask a judge to attribute a certain amount of income to him based on his potential earning ability. You could look to his employment history to determine a previous salary and use this as your base, or look the salaries of the jobs which he has applied to and try to use those as a base. You could also ask, as part of a modification, that he be required to apply to a certain number of jobs each week and provide proof of that to the court.
To get a better idea of what his support obligations may be, you can use this online calculator: https://wfb.dor.state.ma.us/DORCommon/Worksheets/CSE/Guidelines.aspx. Also, here is a link to the full text of the MA Child Support Guidelines: https://wfb.dor.state.ma.us/dorcommon/urlredirect.aspx?linkid=1.
Best of luck.
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First of all, if he has been looking for a job for a year then he admits he is physically able to work. Secondly, even if he is awarded disability the family court judge can make his/her own determination relative to whether he is able to earn money, and make an order of support accordingly. File a new contempt and go before the judge.
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I am a former DOR Child Support Enforcement Attorney, and have handled many cases with similar facts as yours. In order for the non-custodial parent to be found in contempt of court, the burden is upon the non-custodial parent to show that he cannot comply with the court order. In this instance, the evidence he is able to present might be deemed enough to find that he cannot currently comply with the court order.
I would suggest seeking some sort of payment plan, but I do not think, in this instance, that the non-custodial parent would be found in contempt.
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A lot of factors are considered regarding child support. Has paternity been established?
Also, whether or not the children were born out of wedlock may effect your rights in Massachusetts. For example: note the following statute. http://www.malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter273/Section15
also see: http://www.malegislature.gov/Laws/GeneralLaws/PartII/TitleIII/Chapter208/Section28
The payment and receipt of child support payments are not always "clear cut". A qualified family law attorney can be very helpful in situations like these. I hope these links help you find the answer you are looking for, if not, please feel free to contact an attorney listed on this website.
This response is not intended, nor does it constitute an attorney client relationship. The answer given shall not be relied upon as legal guidance. You should retain counsel for legal representation, to provide you a more detailed and accurate answer to your question.
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