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Decreasing or Increasing Child Support: Is it Possible?

Posted by 21 Feb, 2011

Child support orders are modifiable long after a judgment’s finality. Subject to certain limitations, child support orders are modifiable at any time as the court deems necessary. The family law court has primary jurisdiction over modifications. Once a marital status/dissolution action has been filed, the family law court’s jurisdiction attaches. Disputes over the modification of […]

Child support orders are modifiable long after a judgment’s finality. Subject to certain limitations, child support orders are modifiable at any time as the court deems necessary.

The family law court has primary jurisdiction over modifications. Once a marital status/dissolution action has been filed, the family law court’s jurisdiction attaches. Disputes over the modification of child support should ordinarily be heard in the family law action in which the original support obligation was imposed. Many times, parents relocate to different states or countries and in that instance, there is a bases for shift in jurisdictional situs.

Reason for Modification: Generally, courts will not modify or revise a child support order unless there has been a ‘material change of circumstances.’ There are no rigid guidelines for determining when the circumstances have sufficiently changed to warrant a child support modification. The determination is made on a case-by-case basis and may turn on the facts particular to each individual case (such as ability to pay or need).

Ability to pay: A change in either parent’s financial position is not an automatic ground for modification. The Court will examine both parties’ circumstances and will evaluate the circumstances according to statutory factors set forth in the Family Code.

Parent’s increased wealth: The obligor parent’s enhanced wealth often itself will be grounds for increasing the child support level.

Earning Capacity vs. Actual Earnings: The parent’s actual earnings are not always the controlling question when calculating the obligor’s ability to pay. The Court has discretion to consider the earning capacity of a parent as opposed to the parent’s income, so long as it is in the best interests of the children.

Can both parents agree to modify support? The parents may agree as between themselves to increase court-ordered child support payments at any time and under any circumstances. The agreement should be reduced to a writing and signed by both parties.

Can my ex-spouse’s/new mate’s income be considered? Trial courts may not consider the amount of support the income of a parent’s subsequent spouse or nonmarital partner makes except in ‘extraordinary cases.’ For example, new mate income may be considered if child would otherwise suffer ‘extreme and severe’ hardship.

Bottom Line: Child support modification is determined on a case-by-case basis with the best interest of the minor child at the forefront.

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Hold up . . . Wait before you sign over that Deed!

Posted by 17 Feb, 2011

A quick claim deed is also known as a quit claim deed. A quit claim deed transfers whatever interest or title a grantor may have without warranty. Even when a quit claim deed is signed, it does not release the person from the loan. A quit claim deed gives up ownership of your home and […]

A quick claim deed is also known as a quit claim deed. A quit claim deed transfers whatever interest or title a grantor may have without warranty. Even when a quit claim deed is signed, it does not release the person from the loan.

A quit claim deed gives up ownership of your home and associated rights and responsibilities. It operates to release any interest in a property that a person may have, without a representation that he or she actually has a right in that property.

Couples who are divorcing often use a quit claim deed by one spouse to transfer real property ownership to the other. A quit claim deed is often executed when the property isn’t sold.

Before you sign a quit claim deed during the pendency of your divorce proceedings, you should seek legal advice. You could potentially be transmuting your community property into your spouse’s sole and separate property.

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Dependency Exemptions: Who gets it?

Posted by 13 Feb, 2011

The Law is clear, the custodial parent is entitled to the dependency exemption and the child tax credit. The custodial parent may sign, or the court may require the custodial parent to sign IRS Form 8338. IRS Form 8338 will waive the custodial parent’s right to take the exemption so that the noncustodial parent may […]

The Law is clear, the custodial parent is entitled to the dependency exemption and the child tax credit. The custodial parent may sign, or the court may require the custodial parent to sign IRS Form 8338. IRS Form 8338 will waive the custodial parent’s right to take the exemption so that the noncustodial parent may do so.

If there is split custody, rotating custody, or if there is no agreement which establishes who has custody, then “custody” will be deemed to be with the parent who, as between both parents, has the physical custody of the child for the greater portion of the calendar year.

If there is an exact equal timeshare between both parents, then pursuant to the “Working Families Tax Relief Act of 2004,” effective January 1, 2005, the parent who is entitled to the dependency exemption is the parent who has the highest adjustable gross income for the taxable year.

However, it is advisable to also look at the Dissomaster printout which calculated the support order in your case.  It will set forth in the exemption column who received the credit for claiming the children.  This is one way of resolving any disputes over the dependency exemption.

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