Legal Question in Family Law in Minnesota
Credit given to children of marriage
My husband had an affair resulting in a child. When I found out about it I wasn't sure if I was going to stay with him, so I never filed for child support at the time, we now are trying to work things out. Now he has been proven to be the father and he was ordered to pay 25% of his income. The court never gave him credit for our two children ages 4 years and 11 months. Our 11 month old is only 3 months older than the other child, she is getting more per month than I am making.I want to know if my children can go to court and get their 30% first. My husband never got a lawyer to represent him. What this is telling people in my situation is not to try to keep your family together just to call it quits right away you'll be better off in the long run.
1 Answer from Attorneys
Re: Credit given to children of marriage
This is unfortunate, but as I read the child support guidelines, the child support he is paying is a deduction from his gross income in calculating what his net is for purposes of applying your 30%. In other words, you get 30% of what's left over after he pays the existing child support order.
At the time he was in court over the first child, your husband could have argued for a deviation downward from the guidelines taking into account his marriage and subsequent children. Those deviations are granted sometimes.
In light of the equities of your situation, you may have grounds for a deviation upward from the guidelines. The guidelines are only "guidelines." They are not absolutely controlling of every situation.
A good lawyer can help you with this. Paradoxically, it appears it would also be in your best interests for your husband to get a good lawyer too. I can't help but think that your situation might be a good one for a couple of collaborative lawyers - one on each side. Go to your favorite search engine and run a search for the Collaborative Law Institute.
Good luck.
This response is for general information purposes only and does not create an attorney-client relationship. You are advised to consult the attorney of your choice concerning the details of your case.
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