Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.
“I live in Colorado and my Ex has filed a Modification of Child Support and Maintenance back in April of 06 and our Court date is Feb 5th 2007. He filed it because he was fired for reasons unknown from being a Network Engineer making 90,000 a year and is now claiming to be self employed installing windows on houses……….he is the primary parent and he pays me 400$ a month in maintenance and I pay him 609 a month in child support based upon his past income. I of course ordered him to do a Vocational Assessment that cost me $700 and I gave the Assessor his Resume which I had a copy of and when I got the report the Assessor said that my Ex was claiming that he cannot be a Network Engineer anymore because he is a disabled Vet, which he is (60% disabled determined by the VA when he retired from 20 years in the Air Force in May of 04)……the Assessor asked him for medical evidence that he has problems and my Ex got letters from his Doctor and his therapist claiming he is too stressed being a Network Engineer………..this of course makes no sense to me since he is doing hard labor now. Well my question is how can I make sure that his income will be imputed and will the Judge make me pay him back the difference in child support and pay back the maintenance from when he filed the motion if the Judge lets him get away with making $12 a hour now compared to 90,000 a year just because he has letters from his Doctors and is a disabled Veteran? I am in the process of trying to find out why he was fired but will this really even make a difference if he has letters stating he cannot be a Network Engineer anymore? I know he is more than capable of making 90,000 a year and would still be doing this job if he was not fired and the Vocational Assessment says that he can make that too……….but now his claims of having health issues is my main concern and having to pay back the $400 in maintenance from when the modification was filed………..what can be done?”In California, the decision to impute income is in the judge’s discretion. If the expert report came out that he is not able to work at the higher paying position, then you likely will need a competing expert witness to refute that to have any success. His income is what it is, if there is no imputation. If he is willing to go through life at $24K per year until the children reach majority, that’s the way it’s going to go, even though it might negatively effect your spousal support offset (unless the spousal support amount is non-modifiable permanent maintenance or something like that).
Question: What you do is what is best by your children. If that means your support goes up, your support goes up. Before finding an attorney (And I believe you should consult local counsel) or moving to the least common denominator (quitting your good paying job just so your child support goes down) figure out what this will cost both monetarily and in human terms to fight. Additionally, see if ex will agree to some middle level salary (between 90K and 24K) that will obviate the need for additional court appearances to review his fitness to get back to work at a higher level.
Other fancy and destructive things can be done like seeking to change custody, but really this does not have anything to do with the support issue. Incomes are what they are, or what the Court determines them to be. Put your children first.