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Child support modification
Old 10-18-2018, 11:27 AM   #1
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Child support modification

Moral/ethical dilemma here: DH pays child support for 4 year old twins. He made a bad agreement at the time of his divorce from their mother and has been honoring that agreement for 2 years. He is paying support as though he barely sees his kids ($1800/mo) however he has them routinely more than what is documented in the agreement. Not an extra night here and there, but about a solid week straight every month- has been this way since their divorce was finalized in 2016. His ex cannot say that it is due to her job -she has retired from active duty where she traveled and started a new career where she travels just as much. She has always made more money than DH and due to the lack of communication between all of us we do not know what she makes now. I can speculate that her pension is $70k/year and she is likely earning 6 figures at her new gig.

We have met with an attorney and we know what MD law is regarding support and visitation and legal custody (DH has joint legal custody but she has sole physical). Under MD law since there is a material change in the kids going to school (starting kindergarten next year) and we can show that for the past 2 years DH has had the kids more than 129 overnights (35% of the time) we are eligible to apply for modified custody/visitation and subsequently lower support payments. His ex is not the least bit interested in what the law has to say and will be fighting us until a judgment is reached in court.

We are willing, ready, and able to begin the legal proceedings while DH is still gainfully employed earning a six figure income. This means that he will pay more because the support calculation will be done with his current pay. He and I believe this is only right to show what he could/should contribute to raising the kids. He retires from the military next fall. And we both acknowledge that this amount, even when lowered, is going to hinder our ability to fully retire early. I am budgeting for it and preparing myself for the war that is about to start with the ex.

Not sure if this matters but he is also transferring his GI Bill to the kids so they get 2 years each paid and contributing $400 to a 529 plan- on top of the support payments. I would like to propose that he stop the 529 plan once he retires because the kids will have their college mostly funded through his GI Bill transfer.

I guess I'm asking whether this will all be worth it... has anyone gone through something similar? Our legal fees will probably land somewhere in the $10k area (lower end estimate) and we're cash flowing the entire thing.
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Old 10-18-2018, 11:56 AM   #2
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You don't mention what the reduced monthly expectation will be, and what the odds are of you winning. Either way, you have to do the math on that side of things. I do think that challenging the visitation to ensure that is increased and protected is a good idea, but the support payments part gets tricky:

Whether he wins or not, will this cause additional acrimony between these ex's? (gonna guess yes on that one). Will that result in the ex-wife being less flexible with your husband's time with the kids? Will she bad mouth him more to them? What will they think when they find out that he fought to pay less for them?

There are many considerations here besides the financial ones. If I were you, I'd really be careful about any pushing on this (not saying you are), because if things go wrong over the next 14 years, you don't want to hear "well if you hadn't told me to drop their college plans!"... etc.
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Old 10-18-2018, 12:26 PM   #3
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I'm trying to get to the bottom line of exactly what outcome you're seeking........

Quote:
we are eligible to apply for modified custody/visitation and subsequently lower support payments.
Is it:

1. You want the 35% of the time you've had the kids on an informal basis to be made a part of the divorce decree and therefore enforceable.

2. You want lower monthly child support payments to the ex since you'll be legally required to have the kids (and provide for them) 35% of the time.

Is that it?

As far as the 529b and other future benefits for the kids, since it sounds like you're very much in favor of fighting for more legally guaranteed involvement and time with the kids, I'd keep all aspects of the relationship congruent.
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Old 10-18-2018, 12:28 PM   #4
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You don't mention what the reduced monthly expectation will be, and what the odds are of you winning. Either way, you have to do the math on that side of things. I do think that challenging the visitation to ensure that is increased and protected is a good idea, but the support payments part gets tricky:

Whether he wins or not, will this cause additional acrimony between these ex's? (gonna guess yes on that one). Will that result in the ex-wife being less flexible with your husband's time with the kids? Will she bad mouth him more to them? What will they think when they find out that he fought to pay less for them?

There are many considerations here besides the financial ones. If I were you, I'd really be careful about any pushing on this (not saying you are), because if things go wrong over the next 14 years, you don't want to hear "well if you hadn't told me to drop their college plans!"... etc.
All good points, thank you. According to the attorney the support amount will drop to about $750-800/mo. The attorney seems to believe that this is an open and shut case since we're only asking to document what is actually occurring with visitation and not requesting something radically new. It helps a lot that these additional overnights came directly as a result of the ex's schedule and not us requesting to have the kids more (that sounds harsh and I love them- but I don't want anyone to think that we've been gaming the system for 2 years).

This will absolutely cause acrimony between the exes however short of her packing up and attempting to leave the state (which she has threatened to do) I don't foresee it getting better in the coming years. She has been showing narcissistic traits for a long time and reasoning with her is impossible.
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Old 10-18-2018, 12:33 PM   #5
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I'm trying to get to the bottom line of exactly what outcome you're seeking........



Is it:

1. The one-third time you've had the kids informally be made a part of the divorce decree and therefore enforceable.

2. Lower monthly child support payments to the ex since you'll be legally required to have the kids (and provide for them) one-third or more of the time.

Is that it?
Yes to both. Maryland works on a child support calculation that includes not only income of the parents but also the amount of time the children spend at each home. There is a magic cutoff at anything below 35% being an automatic sole custody formula- so if you have the kids 2 nights a year or 120 nights a year you will pay the same amount according to MD law. DH is currently below 35% on paper. But if we were to have the agreement changed to show his actual time with the kids it raises him above 35% and hence the support amount will go down. If we're already setting up our household to have the kids 11-12 nights per month I do not want to pay as though DH is an "every other weekend" parent.
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Old 10-18-2018, 02:22 PM   #6
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Yes to both. Maryland works on a child support calculation that includes not only income of the parents but also the amount of time the children spend at each home. There is a magic cutoff at anything below 35% being an automatic sole custody formula- so if you have the kids 2 nights a year or 120 nights a year you will pay the same amount according to MD law. DH is currently below 35% on paper. But if we were to have the agreement changed to show his actual time with the kids it raises him above 35% and hence the support amount will go down. If we're already setting up our household to have the kids 11-12 nights per month I do not want to pay as though DH is an "every other weekend" parent.
Thanks for the explanation.

With those rules, it sounds like the ex might fight for the legally documented agreement to be just below the 35% as far as support payments go.

Are you OK with the 11 - 12 nights per month becoming mandatory as opposed to the current voluntary arrangement? I'm assuming so. If the ex suggests you going to 50% (or more), is that OK, even desirable, for you folks?

My comments are meant to suggest you think about any unintended consequences that might come along with saving a few kilobux per year on support payments. Doesn't sound like there will be, but think about it. With the ex's new career involving significant travel, who knows what might come out of a reopening of the arrangements?
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Old 10-18-2018, 03:28 PM   #7
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What happens if your DH takes a job that requires him to travel a lot and that extra week a month of having his children stay with you isn’t so easy? Maybe he should wait on this til he retires from active duty and makes his next move careerwise.
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Old 10-18-2018, 04:05 PM   #8
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What happens if your DH takes a job that requires him to travel a lot and that extra week a month of having his children stay with you isnít so easy? Maybe he should wait on this til he retires from active duty and makes his next move careerwise.
Thanks for this. Part of DH retiring is because he does not want to move or travel anymore. He is not going to work for at least a few months after leaving active duty and if he does go back to work itíll be part time or for less money. We donít expect him to make what he earns now. Work for him will be completely optional and only if it fits in his schedule.
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Old 10-18-2018, 04:09 PM   #9
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Are you OK with the 11 - 12 nights per month becoming mandatory as opposed to the current voluntary arrangement? I'm assuming so. If the ex suggests you going to 50% (or more), is that OK, even desirable, for you folks?

My comments are meant to suggest you think about any unintended consequences that might come along with saving a few kilobux per year on support payments. Doesn't sound like there will be, but think about it. With the ex's new career involving significant travel, who knows what might come out of a reopening of the arrangements?
Iíd love to have the kids more! I think it would provide them some routine and stability that might be lacking in their other home. It might help that I donít want kids of my own but I can live vicariously through them.
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Old 10-18-2018, 04:17 PM   #10
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I think it's worth it, as the children are very young, so saving estimated $10K per year for 16 yrs is worth it.
Trick is to have actual documentation that proves you have had the children that much, as ex will simply deny it as a lie.
Very cute and possible occurrence will be this drags on until next Fall, in which case, argue the support payments based on your Husband not working/retired. Much lower payment basis.
Be sure your income & savings are separate from Husbands... don't want judge to say since you are working/rich you can pay for ex's kids (which happens).
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Old 10-18-2018, 04:48 PM   #11
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Couple questions: Are yall under MD law? Im reading guidance that said child support in MD is based on a proportion of each parents' gross income. I wonder specifically how that calculation is done. Your husband is still AD? Exwife is retired with pension, and working for prob 6 figures. DO you have any idea if shes drawing any additional money from the VA and if so does that count in the calculation? You say she has ALWAYS made more money than he so Im going to assume she was always sr in rank to him. Now MD has a fairly decent housing allowance BAH and BAS and I wonder if THAT is included in the calculation. I would be teasing the numbers out of this.

Sounds like Mama is doing decent for herself and has opted INTO a high travel job and yall are conveniently room and boarding these kids more than a quarter of the time AND coughing up the big bucks for monetary support that "could" go to a nanny while she is on travel if she needed to do tha because the support payment is setup for an absentee parent. I would not stand for a minute of this. If you love those children, keep having them, 3 parents is better than 2 sometimes. But I would not be keeping this exwife in a lifestyle. Nope. Curious if theres any alimony going on also. Not my business. But at this point im wondering if exwife is lurking in this chatboard bc she is on the QUICK road to ER between pension, salary, travel benefits, childsupport, maybe VA and maybe alimony (which you haven't mentioned).

In another post didn't you mention she wanted these twins in nothing but private school? Is that your bill too?
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Old 10-18-2018, 04:50 PM   #12
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Also, if you do get this mandatory support rolled back (and I def would, and I would keep taking notes and I would file for it when he retires bc that's how this works) and then put the difference into college accounts for the kids that YOU manage. Not exwife. You are not begrudging the care and feeding of these children, but it sounds like youre begrudging the manadatory nature and the court designated AMOUNT. Could make a decent dent in a college account if youre given the flexibility to do it and that's on your list of desires.
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Old 10-18-2018, 05:03 PM   #13
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I would seek the modification. You're paying $10K for the likely chance to save $12K per year for ~14+ years, and it sounds like you can afford it. There may be additional acrimony from the ex, but that stuff usually dies down over time (a few years).

You should have already been documenting the extra time the kids have been spending with you. If you haven't, start now and keep a diary of significant events that you can share with the judge if it came to trial.

I don't know for sure, but I don't think most support modifications go to trial. Most judges will order you to go to mediation, which is cheaper for both sides. Also, the kids' Mom will likely have to foot her own legal bills, and if yours are ~$10K then hers will also likely be around $10K, and she probably doesn't want to pay that, especially since her lawyer will advise her of her chances of winning in court.

My state bases child support on what a person reasonably could make rather than what they are making, so if you are making retirement plans and your husband is retiring voluntarily, you should plan on making child support payments based on his current military pay, not his lower pay in retirement next year. In other words, you cannot go to court two years from now and say, "My husband is only making $20K now but child support was based on his military pay of $80K. Please adjust it downward, Judge." The judge will say "Sorry, welfare of the child comes first; your husband could have stayed in the military making $80K, so child support will be based on $80K." If your husband is retiring due to disability of some kind, that would be different.

In my state, the income and assets of a stepparent are irrelevant, which is different from what Sunset stated above. Double check with your lawyer, but in my state the only inputs are the incomes of the two biological parents and the percentage of custody.
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Old 10-19-2018, 12:05 AM   #14
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If the ex really wants the $$, how would you feel if the outcome of this is that you no longer get the kids 35%+ of the time? She might do that as a way to punish you for starting this battle, and as a way for her to keep child support as it is. It doesnít sound to me like thatís the outcome you want, but it seems to me it is a risk.
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Old 10-19-2018, 06:17 AM   #15
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Couple questions: Are yall under MD law? Im reading guidance that said child support in MD is based on a proportion of each parents' gross income. I wonder specifically how that calculation is done. Your husband is still AD? Exwife is retired with pension, and working for prob 6 figures. DO you have any idea if shes drawing any additional money from the VA and if so does that count in the calculation? You say she has ALWAYS made more money than he so Im going to assume she was always sr in rank to him. Now MD has a fairly decent housing allowance BAH and BAS and I wonder if THAT is included in the calculation. I would be teasing the numbers out of this.

In another post didn't you mention she wanted these twins in nothing but private school? Is that your bill too?
Yes we are under MD law, his BAH is included in the calculation for support even though it is not taxed. We have no idea what the ex is getting from the VA if she gets anything at all. If she is, it should be included in the calculation. Of course we can't prove what she makes and she will only provide information that will help her case.

The school payments are discussed in the agreement and say that each parent is to pay their part proportionate to their income, not including their pensions. So if it comes to that I think the ex will change her tune or we will have to consider my income as part of the equation or she will say that his potential income is $X so he should pay $Y. Currently, MD does not include stepparent income when they calculate child support.

There is no alimony involved, I don't mind answering that.
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Old 10-19-2018, 06:19 AM   #16
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If the ex really wants the $$, how would you feel if the outcome of this is that you no longer get the kids 35%+ of the time? She might do that as a way to punish you for starting this battle, and as a way for her to keep child support as it is. It doesnít sound to me like thatís the outcome you want, but it seems to me it is a risk.
Yes you are right. Neither of us has a great support system in the area, all our families are several hours away. If she went that route she would be hiring an au pair or a nanny or something similar. The work would be on us to prove that the kids being with their father is better than them being with a nanny. That is a risk we would be taking.
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Old 10-19-2018, 06:35 AM   #17
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You should have already been documenting the extra time the kids have been spending with you. If you haven't, start now and keep a diary of significant events that you can share with the judge if it came to trial.
Yes DH has calendars from the past two years when this started. The calendars can be largely supported by emails or text messages between DH and the ex so it is unlikely that a "he said/she said" case would get very far.

I'd like to thank everyone for their feedback. This is a sensitive topic between DH and I and you all have given us some good discussion points to weigh the pros and cons together.
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Old 10-19-2018, 08:47 AM   #18
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No comment on your decision as that is yours to make. I think your estimate on legal fees is way too small, along with the emotional toll it could create.
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Old 10-19-2018, 09:26 AM   #19
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Yes you are right. Neither of us has a great support system in the area, all our families are several hours away. If she went that route she would be hiring an au pair or a nanny or something similar. The work would be on us to prove that the kids being with their father is better than them being with a nanny. That is a risk we would be taking.


Dad vs nanny seems clear, but what if she says a family member of hers is moving to the area to help? Dad vs grandma, aunt, etc may not be as clear.

Good luck with your decision and let us know how it turns out. These are sad situations.
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Old 10-19-2018, 10:54 AM   #20
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Yes DH has calendars from the past two years when this started. The calendars can be largely supported by emails or text messages between DH and the ex so it is unlikely that a "he said/she said" case would get very far.

I'd like to thank everyone for their feedback. This is a sensitive topic between DH and I and you all have given us some good discussion points to weigh the pros and cons together.
Print out those emails, and organize them carefully, so it's plain as day.

Also, understand one way ex can try to take wind out of your sails is to tell judge she is quitting her great job and working at Walmart next week, so will be available all the time. Some people lie in family court a lot, as it's not like criminal court.
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