Legal Question in Family Law in Arizona
my husband pays child support/spousal maintenance to his ex. There is a court order for overpayment of child suport/spousal maintenance/unre-imbursed medical. And we now have a baby of our own together.
First question is can the money that his ex owes back to him be applied toward future child support/spousal maintenance? She will never pay it back to him. She chooses not to work and is fully capable.
Second question
Is the the proper way to figure the two worksheets when he takes his ex back to court? Or do I need a court order in order for the figures to be granted?
I have done the support calculator for him and myself. I put in my income and his income. I have custody of my son from another marriage, so I get a credit for "support of other children". I included his new obligation amount to his other child based on the results of what our obligations are. I have also included education expenses for our baby's future. I have done everything required on the worksheet. His obligation to our baby is higher than his obligation to his other child. But it is not a court order.
I re-did the worksheet for him and his ex. She will not work. But is capale. So I filled in her income based at the minimum wage. It actually lowers his obligation to his other child by 15%. Their original amount was never done based on the child support worksheet, they just agreed on an amount.
2 Answers from Attorneys
#1 - Although it would be difficult to apply the overpayment toward future child support, it is possible to apply it toward the future spousal maintenance (so long as she agrees to do this, or the court orders it). This would be done by simply calculating to arrange to terminate the spousal maintenance a little earlier than the current termination date.
#2 - When you are doing a calculation to determine the amount he should currently owe for child support, he gets credit for the child he has with you (since it is a natural child that resides with him). You do NOT do the calculation to figure out how much his "court ordered" child support would be, because there is not court ordered support for a child living in his custody. In other words, it is not credit for "support of other children," it is credit for having another natural child in his home (which has nothing to do with your income, your other child, or what his "obligation" would be to your baby.
If she is not working but is capable of working, it is reasonable to calculate support attributing minimum wage for her income. If the new amount (when calculated properly) would be at least 15% less than the current amount, then he may be able to get the support reduced.
I'd recommend speaking with an attorney in the county where the orders are currently entered so a proper calculation can be done and you can discuss the options.
The general information about calculating child support is explained in plain English by the Arizona Child Support Guidelines. Check the Arizona Supreme Court website at http://www.supreme.state.az.us/childsup/ Below the "Calculate" button is a button for "Arizona Child Support Guidelines" which I recommend you choose and read through to help you determine what $$ amounts to fill into the Calculator. It doesn't sound like your income should be part of the mix. Yes, you can attribute income to the Mother, but you might have to attribute daycare costs for her also..
Modification of the current order, assuming there is a 15% change in the amount the Father should pay, will need to be filed in the Court that issued the Child Support Order. There are people who take action on their own using online forms. Cochise County accepts the forms from the Maricopa County Self Help Center found online at http://www.superiorcourt.maricopa.gov/SuperiorCourt/Self-ServiceCenter/
Does Mother receive TANF or other public assistance? Is there an open IV-D child support enforcement case? You might be able to request a Review and Adjust through the Child Support Office.
I practice in Cochise County, working out of the corner of my kitchen in Sierra Vista. I would be happy to help your husband do the calculations and provide him with options. I am willing to set up a preliminary consultation. I would charge $75 for the consultation which usually takes around an hour and one-half. Then you can decide whether to proceed on your own or hire an attorney. My hourly rate is $200/hour and I would require some advanced fees. Give me a call at (520) 507-2067 if you would like to schedule a consultation or send an e-mail to [email protected].
Good Luck,
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