Will salary be imputed if I worked 70% for 16 years pre-divorce & have negotiated contractual Agreement?
Question:
I’ve worked a 70% schedule since 1st of 2 children was born 18 yrs ago. Ex & I (w/ representation), voluntarily signed negotiated contractual Separation Agreement incorporated (not merged) into Divorce Judgement 1.5 yrs ago. For child support, we willingly used salary I made for 16 yrs.Our Agreement says we’ll only recalculate CS when oldest turns 21 or substantial change in circumstances.Ex created a substantial change in circumstances in his favor by telling then 17 yr old (now 18) he could move w/ him at 18 (hasn’t happened yet). I found out when child was 17, & reminded Ex of our contractual Agreement that says neither parent is to give the children the impression they can choose which parent with which to live, and of the dispute resolution process in the incorporated contractual Agreement requiring we exhaust verbal & written modes & mediation or collaborative process before looking to courts.Ex then filed a FC petition to modify child support with 1 child with each of us w/ a request that my salary be imputed at 100%. I didn’t reduce salary for CS. We already addressed this in negotiation w/ counsel. Can a judge 1) grant modification, and 2) impute given our Agreement?
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Answer:
If the child has not moved in with him yet, there has been no change in circumstances and definitely not a substantial change in circumstances. Your income at 70% is not a change in circumstances. There is a right to seek a modification every three years or in the event of a 15% change in income unless your agreement specifically waives that right. It sounds like it may have. Some support magistrates enforce the obligation to go to mediation first and some do not. I highly recommend that you consult with an attorney so that all of your paperwork can be properly reviewed before court.
This legal question was provided by Avvo and answered by Jean Mahserjian, an experienced Saratoga County Child Support Lawyer. This does not consent an attorney client relationship.
