Child Support

[michycm]

My husband and I have been married for 16 years. We originally separated 4/08, reconciled and then separated again 2/09. When we separated 4/08 his job payed $63/hour and his support for our two children was $1580/month. He lost that job 3/09 due to poor job performance and started receiving unemployment. His unemployment was $490/week which put the support at $553/month. Because he was not always good about paying his support, I involved the DSS who had a court order put in place effective 8/1/09 for $553. He then got another job paying $25/hour on 8/5/09 but didn't tell the DSS until 8/24/09. DSS agreed since there was a sufficient difference between the unemployment and the income for his new job that we could seek a modification to the support immediately. Based on the new job his support would be $875/month. While we were in the process of having him served the separation/support lawsuit it was discovered he was in jail for assaulting his girlfriend. He was served on 10/13/09 and I went to court with my attorney on 10/16/09, he did not show up. The judge told us he has 30 days to answer the lawsuit and wouldn't issue a temporary court order for the modification of support. The judge commented that she didn't think he would be required to pay the back child support I'm seeking, which was verbally agreed upon based on his unemployment, because it was prior to the court order. She also mentioned that she didn't think we could ask for the modification retroactively to the date of hire of the new job although both the DSS and my attorney said we could. Since 1998 his income has ranged from $75k to $125k per year and $25 an hour now is much less than that. I was going to accept $875/month and not pursue potential income, however now he has stated he lost his job again, which appears due to missing work as he was in jail. What are the laws, my rights, on back child support that is verbally agreed upon, modification of support retroactive to the date of employment, and potential income? I know that if he has really lost this job, even with a court order, I won't be able to collect the support if there is no money. But, I am looking at still being able to, in the future, collect what is rightfully due.

[Erin Clarey]

A verbal agreement will not hold up in court, and is essentially meaningless. Support will be calculated based on his current income if the court finds that a change in circumstances is substantial enough to warrant a change in support, otherwise the support will remain as it was in the last order.
The judge is correct in stating that your ex has 30 days to respond to the motion to modify.

[michycm]

Will the change in support due to the new job be retroactive to the date of hire of that job?

I guess I need to understand why the non-custodial parent is not responsible for support based on their income before a court order is in place. You don't have a court order in place on the date of separation, all these processes take time, so the non-custodial parent just doesn't have to pay until it's a court order? It seems that the legal system is working in favor of non-custodial parents who don't feel like doing what they should instead of making sure children are taken care of.

Will any verbal agreement hold up in court? We verbally agreed on splitting car insurance and also for him to pay his part of the health insurance as I can't remove him until we have a legal separation or open enrollment. He has failed to hold up to that verbal agreement, can he be made to pay that back in a separation agreement or court?

[Erin Clarey]

The change could be retroactive to the date of hire, but it is within the judge’s discretion. Parents do have a duty to support their children absent a court order, however judges do not always order retroactive support pursuant to the Guidelines.

No verbal agreement will hold up in court in the context of marital litigation.