Sister divorced 10 years ago. Ex got new job w substantial income increase since support was set. He never notified her, court or DOR about change in income. Who has the obligation here? He has never paid anything toward "reasonable expenses". Child support tables show he is light $600/mo based on his current income. This could go back 3 years. She has filed for modification this year. What can she expect in court? I read no look-back beyond the date mod was served. Even if he is not forthcoming with his income? Is he in contempt? I know expenses will be gray area re: "reasonable". Their agreement needs revisions for sure. Any chance for shared legal expenses? Will judge consider retroactive adj to date of income increase? Will interest on arrears amount be due to her? Any other advice?
There is no obligation on the payor spouse to report an increase in income. Child support cases are supposed to be reviewed every three years to determine if the current amount of child support is appropriate, which serves to address situations like yours when the payor-spouse is not forthcoming about his increase in income.
There is no obligation for parents to reveal changes in income to the other parent or to the court unless the divorce agreement or judgment imposes such a requirement. If a modification action is filed now, it can modify child support into the future. Child support can't be modified retroactively.
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Unfortunately for your sister any increase in the amount of child support will only be retroactive to the start of the modification case. The good news, however, is that your sister can use this as an opportunity to address the deficiencies in the earlier order. If her ex-husband is supposed to pay for additional "reasonable" expenses above and beyond child support, she should ask the Court specify what expenses are reasonable so that there is no argument in the future. If college expenses have not yet been addressed, she can think about doing that now. She can also ask the Court to order the parties to exchange financial statement annually or in the event of a change in income in order to avoid a situation like this arising again.
Disclaimer: This answer is provided for informational purposes only and it is not intended as legal advice. Additionally, this answer does not create an attorney-client relationship. If you wish to obtain legal advice specific to your case, please consult with a local attorney.
My colleagues are correct in their responses. Just a few more pieces of information to respond to some other questions you raise. I am a former DOR Child Support Attorney, having been at the DOR for over 3 years, and have dealt with experiences like these on a weekly basis.
First, it is extremely rare for parties to share legal expenses, or for a court to order father to pay for mother's request for a Modification. I have not seen it happen. This is mother's case, not father's, and mother will have the obligation to pay for her legal fees, and father will have the duty to pay for his.
Second, by statute (119A), there is no retroactive child support modification, as mentioned by my esteemed colleagues. Mother can, however, get retroactive child support back to the date father was served with the Complaint. Accordingly, if the case goes in in three months, and father was served in February, any change in child support will be retro to February, once father was put on notice of the case.
Third, father is not in contempt. Father would be in contempt if there was a court order for him to do something, and he voluntarily failed to do it. If he was ordered by the court to inform mother of an increase in income and he failed to do so, that may be grounds for a contempt proceeding; however, given the facts of the case as I know them to be, there is no grounds for a contempt against father. Moreover, mother would have to file a Complaint for Contempt, which would be a different case, different complaint, etc.
Finally, I am not sure what you mean by "reasonable" expenses. Father is obligated to pay child support. Child support is meant to cover shelter, food, and reasonable expenses to raise a child. I am not familiar with any other court obligations to pay other additional expenses, although certainly the court could order a party to pay for specific expenses of raising a child, e.g., mother to pay for ballet classes, etc. However, this is fact specific.
Regarding what mother should expect at court, etc., I believe this question is better suited for the attorney who will be representing her on that day. I wish you sister luck!
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