Child Support

After the parties agree to a parent-child contact schedule, or one is ordered by the court, the next thing to determine is the child support obligation. This undertaking is presided over by a special magistrate.  Each party is required to fill out and file a financial affidavit, a Form 813 in family court parlance.  This is a sworn document that lists all the parties’ incomes, debts, assets, bills and expenses. 

The income of the parties and the percentage of total overnights each has the child is put into a spreadsheet called the Child Support Guideline and out pops a figure.  The Guideline is available to anyone for downloading and can be found at the Office of Child Support’s website: http://dcf.vermont.gov/ocs/parents/guidelines_calculator. Other considerations involved in determining child support are work-related child care, health insurance costs paid on behalf of the child, extra-ordinary medical, educational or other costs, and additional dependents who you have a duty to support.

If the figure produced by the Guideline is agreeable then that becomes the Order.  However, either party can request that the Guideline amount be deviated from, either up or down.  Some reasons for such a request (not routinely granted, by the way) is that the other party is hiding income or that they are voluntarily under- or unemployed.  Or that one has extraordinary costs that warrant special consideration.  The burden is on the requesting party to persuade the court of this, naturally.  It isn’t sufficient to simply say the other parent is hiding money or that you have lots of bills.  The court doesn’t really care about your bills.  Its job is to watch out for the kids.  If you have run up more bills than you can handle, well, tough, basically.  However, if you are supporting your mother on an iron lung, well that might warrant special consideration.  

Subpoenaed records and/or testimony may support a party’s claims.  For example, in a hearing to determine if the other party’s income is being under-reported, one might show evidence of a checking account with unaccounted for funds moving around or credit cards being used excessively (and paid off); or showing the court that the amount of product being used by a self-employed individual indicates income greater than that being reported.  

A final point worth mentioning is that the court acknowledges that a person needs a certain amount of money to survive, a so-called self-support reserve, below which they will not be required to make do.  If you or the other party earn this amount and withstand a claim that you are voluntarily under- or unemployed, then it could be that there is no child support obligation owed.

Buttressing Your Family Law Action

The weakest ink is better than the strongest memory.  – Chinese Proverb

During the course of litigation, whether it is a family law divorce or parentage action or custody dispute or a personal injury action, I insist that my clients keep a journal and a calendar.   As things unfold, first outside of court and then inside, and weeks turn into months, it is imperative to capture your experiences in writing.  No matter how fresh and unforgettable things may seem at the moment, with the passage of time – and it could be a year or more before some cases get to trial, even the best memory fade and distort.  Add to this the anxiety of sitting in the witness stand testifying and you chance losing your grasp of the details of the who, what, when, where, how, and why of things and thus, needlessly, some of your credibility before the court. 

In the family law case, a calendar is also recommended to memorialize when exchanges did and did not occur, including no-shows, how often phone calls were and were not allowed to take place, and how many overnights you had.  Also noteworthy are trips to the doctor and dentist and attending parent-teacher conferences.  Note who took them and who was present.  Whether you are the custodial parent or not, be sure you are on top of your kids’ visits to these folks.  At least be on the phone with them, getting records and being up to date with every aspect of these all-important things if you want to impress the court with your involvement and your readiness to continue with or accept custody and/or generous visitation.

Journal entries should reflect the date and time of the event and who was present.  Preferably, phone numbers and addresses are included beside those who might have to testify.  Typical of such entries might be the content and tenor of snarky conversations with the (soon-to-be) ex.  Or the details of confrontations.  Also, print out Facebook and other media entries if they reflect events or comments the court should be made aware of.  On that note, don’t say anything in an email, text, phone call or Facebook entry that you don’t want read in open court.  Unfriend those who might not have your best interests at heart.  Contrariwise, keep channels open with mutual friends and acquaintances that will print out useful entries of the other party after you are unfriended by them.

Litigation can be nasty business.  Avail yourself of those things that can help your cause and minimize the opportunities you provide the other side to help theirs.

How much is my ex entitled to, anyway??

I hear this a lot from clients who earn the majority of the income in a relationship.  They are confounded and perplexed to learn how much property and/or spousal support their soon-to-be ex partners are entitled to.

“I’m the one who went out to work every day,” I often hear.  “She got to stay home with the kids! I paid for everything. Why is she getting half my pension?!” Or house equity. Or paycheck. Or business.  Or whatever.

Under Vermont law, all property (and debts) no matter through whom acquired or when acquired, is considered to be part of the marital estate, to be apportioned as the parties or the court sees fit. Marriage is a partnership, with tasks and chores presumably divvied up to the parties’ satisfaction.  If you weren’t happy for the past 20 years, then you should have gotten divorced long ago.  If you wait 20 years and then claim at trial that you feel that tasks were never fairly divided you have an uphill battle.  The court hears this self-serving argument all too often.

[As an aside, when my clients make the argument referenced above I am quick to point out that if they didn’t bear the kids should this mean they have no rights to them?  That they can never see them again? This would be the equally foolish logical corollary.]

Mind you, it could be that circumstances did keep you in the relationship longer than you would have liked; that your partner didn’t pull his or her weight.  Or that they squandered resources.  This isn’t uncommon.  But the presumption is that contributions were equal and the burden of proof is on the party making an argument to the contrary.

Under the law, the court takes into consideration the contributions of the respective parties to the marital estate as well as any wasting of assets, when called upon to decide who gets what.  Among the considerations are the contributions of the homemaker and possible opportunities foregone as a result of that position.  The person in the workforce usually sees their employability improve with the passage of time and thus their economic outlook.  Not all employers value the skills of the homemaker as much as they might.  Thus, the person staying home with the kids not only arguably contributes equally to the household’s maintenance and well-being, but they also suffer opportunity costs. The court’s task is to determine how to put the parties on an equal footing as they head out of the gate on separate paths. This often takes the shape of giving the homemaker some financial support (alimony and/or a larger share of the assets).