Lessons on Child SupportJuly 14, 2017 9:58 pm
Child Support DecisionA recent court decision sheds a little light on some complications that can arise in child support cases. The parents divorced in 2009. At the time of divorce the judge ordered the father to pay $3,200 a month for three children. He paid the support through the 2015 when the mother filed a motion to raise it.
Can The Judge Raise Child Support Retroactive?After a hearing, the judge decided to raise the amount of the support, retroactive to January of 2014. This was an error because the law only allows a judge to apply child support retroactive to the date of the petition. Or, more specifically, the date when the party who is going to have to pay more support receives the petition. The reason is that a judge can only force someone to pay support starting from the time they had notice. For the person who has to pay, retroactive child support can be a big problem. In this case it means the father will have to pay the new, higher figure, plus repay the difference in what he should have been paying, all the way back to the retroactive date. Basically, a double whammy!
What Counts as Income?Another issue that came up in the case related to the father’s income. The father had taken a large deduction for depreciation. The judge determined the deduction was not legitimate for child support purposes even though it was legitimate for tax purposes. The courts don’t simply accept what is on the tax return. Instead the courts will really look into the bottom line. However, the judge also added $64,253 to the father’s income which was a capital gain for the sale of real estate. The problem is that this large figure included the depreciation that the judge already threw out. So, the judge actually “double counted” the father’s income.
Rocket DocketNew Hampshire Supreme Court decided this case through a “3JX” panel. This is when only three members of the Court decide the case instead of the full five. To be valid this type of decision must be unanimous. This kind of decision is usually not as long as full opinion, and is not considered to make precedent. However, lawyers should read these 3JX opinions if relevant to their areas of practice. They often contain a goldmine of information that otherwise may go unnoticed.
This post was written by Andrew Winters