We were divorced 3 years ago. During the financial disclosures, the ex did not submit income from their rental house in another state. Child support order was made with out reflecting this. How does on go about correcting this error? Can arrears be ordered?
You would first send a letter to your ex-spouse indicated that it has come to your attention that she underreported her income on her Financial Disclosure Form. You should suggest that the error can be corrected by way of a Stipulation and Order. Set a time period for her to respond and agree or tell her if you cannot agree you will file a Motion with the Court. The letter should be sent in accordance with EDCR 5.11.
If she agrees, prepare a Stipulation and Order resolving the matter and recalculating child support. A Schedule of Arrears would most likely need to be completed to determine overpayment or underpayment of the child support obligation. If a credit is owed, make sure to explain how the credit is to be paid in the Stipulation and Order.
If she will not agree, you would file a Motion to set aside the Order alleging fraud or misrepresentation. You need to provide clear and convincing evidence of the fraud/misrepresentation. This is a difficult burden and cannot always be proven to the standard required by the law.
First, you need to know if the amount not reported makes a difference. Keep in mind that the income your ex receives from this rental property will be offset by the expenses of the rental property, so only the net will count in calculating child support. If you have primary custody and your ex pays child support, and her child support isn't already capped at the presumptive maximum, then you might be entitled to a few more dollars. If you share custody and offsets were done to determine child support, there could be a minor change. If she has primary custody and you pay child support to her, the additional income from her rental will NOT likely make any difference in how much you are paying. If the final analysis reflects that you losing enough to make the time and effort of a motion worthwhile, then you should proceed in the manner Ms. Roberts has outlined.
Responses are for general information purposes only, and are based on the extremely limited facts given. A consultation with an attorney experienced in the area of law(s) indicated in the question is highly recommended. Information and advice given here should not be relied upon for any final action or decision, as the information is limited by its nature to the question asked and the fact(s) presented in that question. THIS RESPONSE DOES NOT CREATE AN ATTORNEY/CLIENT RELATIONSHIP, particularly considering that the names of the parties are unknown.
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