Do you have reason to believe that your ex isn't paying as much child support as he should be? Have their circumstances changed for the better, enabling them to provide more for the children? New job? Unclaimed side job money? If this is your situation, you have the right to ask the Judge to review the current circumstances and modify the amount of child support you receive. It's not very difficult to do and you can accomplish this without the expense of an attorney.
Before we move into the method for requesting this change, keep this in mind: You need to have GOOD REASON to believe that your ex is making more money than he was when your current child support order was put into place. A yearly cost of living raise isn't going to do it... but a new position or a promotion are just cause to ask the Judge to review current income levels. Don't waste your time, money and resources for a $5 a week increase, it's just not worth it. But if the non-custodial parent was making minimum wage when the support order was issued, and now they are making union wages... time for a change.
Step 1) Prepare and file a Petition to Modify Child Support - This document is your specific request to the Judge to modify your existing Child Support Order. You need to be as specific as possible and as complete as possible. For example, if you are currently receiving contributions to health care or arrearage payments, be sure to include a request for the court to continue to enforce those payments in addition to child support. You don't want to leave anything out. To obtain a court date to present your petition to the Judge, call the court and see if they will give you a court date over the phone. If not, you'll have to go to the court house to make the request and fill in the assigned court date when filing the petition.
Here is an example of a Petition which can be modified for your county
Step 2) Prepare and file A Notice of Motion - This notice is your method of informing the other party that they have to appear in court. Once you have your form completed, make 3 copies of both the Petition to Modify Child Support and the Notice of Motion and bring them all to the Clerk of the Circuit Court to have them filed. Ask that they stamp each copy. (1 copy for the court, one for the other party and one for you.)
Here is McHenry County, Il's blank Notice of Motion form
Step 3) Mail the Petition to Modify Child Support along with the Notice of Motion to the other party - If you are certain of their mailing address, regular mail is a perfectly acceptable method of mailing. I like to keep a receipt by mailing it at the post office just as one more document in the paper trail. Don't send the page titled PROOF OF SERVICE BY MAIL just yet (see next step.)
Step 4) Complete Proof of Service by Mail and Financial Affidavit - One you've mailed the petition and notice, complete the Proof of Service by Mail section. This is your proof to the judge that the other party was notified, should they not show up for court. In addition, if you live in McHenry County, you will need to complete a Financial Affidavit (as the judge won't hear your case until both parties have completed that paperwork).
McHenry Counties Financial Affidavit is available here
Once the Proof of Service by Mail and Financial Affidavit are completed, you will again need to make 3 copies and file each with the court. This filing can even be done the morning of court. Don't forget to include the past 2 years tax returns and current pay stubs with the financial affidavit.
Step 4) Prepare your case - Depending on your situation, this part may be as simple as having the Judge review the financials presented and setting child support based on state law for child support obligations. If it's more complicated than that, you need to be prepared with any evidence you have that shows an increase in wages. Preparing and presenting your case is a great topic for my next blog... just keep in mind that you need to be organized, prepared and rehearsed. Handle this as you would any business presentation or speech. Even if your ex shows up with an attorney, you get your chance to be heard and to present the facts.
Step 5) Show up for Court and be prepared for the Judge to review your petition and most likely set a hearing date (at which point the other party will have to present their financial information.) If the other party doesn't show at the first court date, you very well may get to present your petition and ask the judge to immediately rule. I did that once and walked out of court with the proper increase in child support and no hassles, don't get me wrong, it was a rare occasion but it happens.
ALL FORMS PRESENTED ARE EXAMPLES AND MAY NEED TO MODIFIED FOR YOUR SOLE INTENT. I AM NOT AN ATTORNEY AND AM NOT OFFERING PROFESSIONAL LEGAL ADVICE.
Tuesday, July 20, 2010
Wednesday, October 7, 2009
Contesting a Motion to Modify Child Support
Today was my day back in the black-hole we call Family Court. While it was a miserable experience, as always... it was another opportunity to learn a little more that I can share with you.
My ex and I were scheduled for a hearing today on a number of things, one of which was a Motion that he filed to Modify his Child Support. While the hearing was postponed (no surprise there), I have some great pointers to share, should you find yourself in a similar situation.
Here's the scenario: My ex was employed full time and the child support he was ordered to pay was set up to be deducted from his paycheck and submitted through the State of Illinois. A couple months ago he claimed that he was laid off from his job, filed for unemployment and went to the courthouse and filed a Motion to Modify (reduce) Child Support.
Normally, this might make sense, if he really got laid off. HOWEVER, he didn't. I discovered this by making a simple phone call to his employer on the day I received his Motion. I identified myself and asked to talk to the person in charge of payroll. I stated that I had received notice that my ex was no longer employed and needed to verify that information to confirm that the company would not be withholding child support payments. They informed me that my ex was still employed but had refused to show up for work. Wow...
I was in court when the Motion went before the Judge, I simply stated that I was contesting the Motion due to the fact that my ex's employer had stated that he was still employed and voluntarily not showing up for work. The Judge set the Motion for hearing. This means that my ex now had to prove his case to the Judge proving that he was no longer employed, BY NO FAULT OF HIS OWN. If he could do this and show a significant change in his circumstances, the Judge would most likely rule in his favor and modify child support to 20% of his unemployment compensation (if this were to be done... ask the Judge to set a status date and mandate that the non-custodial parent prove that he is seeking employment and report back to the court on the status date with proof of his job search. By doing this, if he finds employment, you'll have the opportunity to verify this at the status date and increase the support.)
But, considering the present situation, I am on a mission to prevent that from happening. In Illinois, voluntary job loss is not grounds for reducing child support, especially if it not done in good faith. If I can prove that my ex did NOT act in good faith and voluntarily left his position, the Judge SHOULD refuse to allow the reduction in child support.
Step one... get witnesses! My best chance of proving that he deceived the Court seemed to be by having his employer present in court to tell the Judge that he was still employed and wasn't showing up on the job. Even though I can tell the Judge what they told me on the phone, it's hearsay and they must be in court to tell him themselves. Simple stuff, subpoena them.
Here's a link to the McHenry County Court Subpoena form for witnesses: Subpoena Complete this online, print and it's ready to be served. You can serve this by certified mail, hand delivery or by visiting the County Sheriff and having them serve it. In my situation, I made a very nice phone call to the employer, explaining my situation and my need for their testimony. Fortunately, they were sympathetic (not to mention the fact that they weren't very happy with him either for his refusal to come to work). You are required to pay witnesses a witness fee and mileage allowance. I searched high and low to find out what that amount is supposed to be, even the courthouse had no idea! So I mailed a $50 check (they were having to drive about 70 miles) along with the subpoena via certified mail. NOTE: Be very careful and very specific in the information you put in your subpoena. Don't let your hard work get rejected because of a silly typo or technicality. Proof read carefully!! Be sure you are requesting the testimony of the right person (in my case, the office manager who was responsible for payroll and maintained employee files), and make sure you are specific in requesting them to bring vital information "all payroll records, employee correspondence, proof of termination or proof of job assignments", etc.
As I said, my hearing was scheduled for today and guess what? My witness showed up! Of course, now my ex is scared (as he should be) and he pleaded with the Judge to continue his hearing for his Motion to Modify Child Support so he can go find a lawyer. Hmmmm.... so instead of just paying the child support he owes (and he only is responsible for child support for 8 more months), he's going to pay a lawyer about $2500+ to try to help him reduce it? So, in an effort to try to save about $200 a month for the next 8 months he will now pay an attorney over $300 a month for 8 months instead. Am I the only one seeing the problem here? Wouldn't a good attorney point this out? Right... they'll take his case! So I continue the battle to effectively and intelligently represent myself.... Charge!
In my next blog... this is going to get more interesting. As I know of my ex and I hear from so many women, what about the money for sidejobs, etc that they are making and not claiming? It's not easy to prove, but I have a few ideas!
As always, your comments and questions are welcome! I'm sure there are many parents out there with tough lessons learned... sharing them makes us all that much smarter and more prepared!
My ex and I were scheduled for a hearing today on a number of things, one of which was a Motion that he filed to Modify his Child Support. While the hearing was postponed (no surprise there), I have some great pointers to share, should you find yourself in a similar situation.
Here's the scenario: My ex was employed full time and the child support he was ordered to pay was set up to be deducted from his paycheck and submitted through the State of Illinois. A couple months ago he claimed that he was laid off from his job, filed for unemployment and went to the courthouse and filed a Motion to Modify (reduce) Child Support.
Normally, this might make sense, if he really got laid off. HOWEVER, he didn't. I discovered this by making a simple phone call to his employer on the day I received his Motion. I identified myself and asked to talk to the person in charge of payroll. I stated that I had received notice that my ex was no longer employed and needed to verify that information to confirm that the company would not be withholding child support payments. They informed me that my ex was still employed but had refused to show up for work. Wow...
I was in court when the Motion went before the Judge, I simply stated that I was contesting the Motion due to the fact that my ex's employer had stated that he was still employed and voluntarily not showing up for work. The Judge set the Motion for hearing. This means that my ex now had to prove his case to the Judge proving that he was no longer employed, BY NO FAULT OF HIS OWN. If he could do this and show a significant change in his circumstances, the Judge would most likely rule in his favor and modify child support to 20% of his unemployment compensation (if this were to be done... ask the Judge to set a status date and mandate that the non-custodial parent prove that he is seeking employment and report back to the court on the status date with proof of his job search. By doing this, if he finds employment, you'll have the opportunity to verify this at the status date and increase the support.)
But, considering the present situation, I am on a mission to prevent that from happening. In Illinois, voluntary job loss is not grounds for reducing child support, especially if it not done in good faith. If I can prove that my ex did NOT act in good faith and voluntarily left his position, the Judge SHOULD refuse to allow the reduction in child support.
Step one... get witnesses! My best chance of proving that he deceived the Court seemed to be by having his employer present in court to tell the Judge that he was still employed and wasn't showing up on the job. Even though I can tell the Judge what they told me on the phone, it's hearsay and they must be in court to tell him themselves. Simple stuff, subpoena them.
Here's a link to the McHenry County Court Subpoena form for witnesses: Subpoena Complete this online, print and it's ready to be served. You can serve this by certified mail, hand delivery or by visiting the County Sheriff and having them serve it. In my situation, I made a very nice phone call to the employer, explaining my situation and my need for their testimony. Fortunately, they were sympathetic (not to mention the fact that they weren't very happy with him either for his refusal to come to work). You are required to pay witnesses a witness fee and mileage allowance. I searched high and low to find out what that amount is supposed to be, even the courthouse had no idea! So I mailed a $50 check (they were having to drive about 70 miles) along with the subpoena via certified mail. NOTE: Be very careful and very specific in the information you put in your subpoena. Don't let your hard work get rejected because of a silly typo or technicality. Proof read carefully!! Be sure you are requesting the testimony of the right person (in my case, the office manager who was responsible for payroll and maintained employee files), and make sure you are specific in requesting them to bring vital information "all payroll records, employee correspondence, proof of termination or proof of job assignments", etc.
As I said, my hearing was scheduled for today and guess what? My witness showed up! Of course, now my ex is scared (as he should be) and he pleaded with the Judge to continue his hearing for his Motion to Modify Child Support so he can go find a lawyer. Hmmmm.... so instead of just paying the child support he owes (and he only is responsible for child support for 8 more months), he's going to pay a lawyer about $2500+ to try to help him reduce it? So, in an effort to try to save about $200 a month for the next 8 months he will now pay an attorney over $300 a month for 8 months instead. Am I the only one seeing the problem here? Wouldn't a good attorney point this out? Right... they'll take his case! So I continue the battle to effectively and intelligently represent myself.... Charge!
In my next blog... this is going to get more interesting. As I know of my ex and I hear from so many women, what about the money for sidejobs, etc that they are making and not claiming? It's not easy to prove, but I have a few ideas!
As always, your comments and questions are welcome! I'm sure there are many parents out there with tough lessons learned... sharing them makes us all that much smarter and more prepared!
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