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Child Support Revision

San Jose, CA |

The agreement spells out child support should be revise base on recent W2 and or actual time share should the other parent is not performing 50/50 timeshare agreements. There is also provision for make up of each each equal 2 days make up. The other parent is not willing to make child support revision. What should be the best legal route to enforce agreement?

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Attorney answers 3

Posted

If you are looking to revise your child support obligation and the other parent is not cooperating, then file a Request for Orders asking the court to revise the child support as permitted by the prior order.

I'd recommend that you consult with an experienced family law attorney to determine what support may be appropriate under the circumstances and how you may find out the other parent's income and how you can best present your case to the court.

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Asker

Posted

Thanks David. Is it possible to call IRS to release the other's parent's W2 if he/she still not cooperating? Discovery is an expensive way to go if the tax information is available. Thanks

David Alexander Yomtov

David Alexander Yomtov

Posted

I cannot recall ever subpoenaing records from the IRS. It would likely be easier to subpoena employment records. If you demand a copy of the ex' 2012 tax return and do not get it, file a request for orders compelling responses and the judge would most likely order them to hand it over.

Posted

You could file a Notice of Motion requesting a modification to increase child support, and revise the present timeshare agreement. You will have to file an updated Income and Expense Declaration, your Declaration of Facts, and also provide a copy of the last court order you wish modified along with your Notice of Motion documents. Your ex will have to be served with a copy of these documents, along with a blank Income and Expense form for his completion and filing with the Court. The clerk will indicate a hearing date on the Notice of Motion, and if there is a request to modify the custody/visitation issues, it will be necessary to immediately contact Family Court Services in the Jurisdictional County to schedule mediation prior to the hearing date.

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Asker

Posted

Thanks for the inputs. I see this as a compliance question to the prior order if the other party is not cooperative to revise base on income and actual time share. I wonder what is your inputs and strategy around revising the original timeshare of 50/50 arrangement? how often will the court willing to change it? what is the ROI for doing it? what will prevent the parties from both going back to courts and asking for time share revision let's say after a certain period along the road?

John Noah Kitta

John Noah Kitta

Posted

In all probability, if any lengthy periods of time went by with your ex not complying with the Order, then actually putting in place a new and different timeshare it would seem only logical and the Court could verify that as reality and modify the parenting plan in accordance with what has really been happening. Assuming both parties' incomes haven't changed to a significant degree, and you have increased time with child, this could also result in an increase of child support; the appropriate information would have to be calculated into the Dissomaster by the Court to be determined. Otherwise, there are no guarantees.

Asker

Posted

We went through the court motion before regarding custody timeshare. The court still decided 50/50 with make up right for the other parent of 1 week = 2 make up days for each business trip. Since 1 year of record of pass with all the travels the actual time share with make up is 40/60 from actual performance perspective. I don't think the court would consider revise the time share but may address the child support revision base on the most recent dissometer. I would like to check your thoughts what is the best method to enforce compliance to previous order.

John Noah Kitta

John Noah Kitta

Posted

Hopefully, you have some memorization of how much time your ex actually spends with the children, if it truly, truly is a 40/60 then the child support should be calculated 40/60 basis which should result in an increase if your incomes have not changed significantly. The court will not force your ex to spend more physical time with the children, so that is only an illusionary goal. It is really just a luck of the draw in regard to the Judges, some Judge's kind of take it as a no-harm, no foul and probably make an adjustment in the child support level and not deal with a 50/50 or 40/60; on the other hand, if you get a Judge who likes to really delve in reality, then he may acknowledge and make a new Order in regard to the present 40/60 timeshare. This is really the only advise I can give you in regard to your inquiry, I hope it has been helpful.

Posted

I agree with Mr. Yomtov. However, I would add that you should keep a calendar indicating the dates the child/children spend with you. If you have other evidence of your having more than a 50-50 timeshare such as witnesses and/or day care sign in sheets, that would help too. You may want to have an attorney run support calculations based upon your current income and the other parent's, before you file a request for orders.