My STBXWH started a sole proprietorship during our M. He did not include it on his property info as marital or separate property. He is also not including it in the CS calculation. I will discuss this with my attorney but I don’t want to talk to him about it until I have to (fees). My STBXWH did say in his interrogatory that he acquired this business before we were M. I have tax returns that show he started the business a few years after we were M. Is that enough proof to shows when he started the business even though he did start the hobby before we were M, he just turned it into a business for profit during the M?

I think it would be considered marital property and I think the tax records are good proof, but your attorney would know for sure.

So he left it out of his responses completely? That's a pretty big no-no.

Hey SM05, thanks for ypur response.

Yep, he totally left it out of the financial stuff but he did in the interrogatory say that he started it before we were M.

I hope it is marital property b/c this business was the beginning of the downfall of our M. Seems that STBXWH can't control himself around women in his business b/c that is where the 2 OW came from. I want him to lose the business or I want it to cost him dearly, like him buying me out of it.

Mountain Dew,

If he invested pre-marital $$$ into the hard assets of the business than he MAY be able to exclude those assets from the marital property calculation (of course all income he produces is going to be considered for child support and with 5 kids he's not likely to have much left over for himself). Just cause he converted it into a profit making venture during the marriage did not convert the hard assets into marital property at that time. The depreciation schedules on the tax return of the business (even the most current ones) should list when all the assets were acquired but subtract out the assets he "booked" as company assets on the date he converted the hobby into a business (unless you know one or more were actually purchased within the 2 years of marriage preceeding such conversion).

Essentially, you are looking for how much of the income during your marriage he INVESTED back into the business during the marriage. That was marital income and those assets so acquired should be marital property. Might not be the whole kit n' kuboodle but it's something. I doubt you'll ever actually get the assets. Your attorney will likely use it as a trade off to get you a higher percentage of other marital assets, if any.

I know you're mad and you have every right to be but destroying his business, IMO, is not a very healthy attitude for YOU to have. It likely won't happen and your kids need him to make as much money as possible so that he can pay as much child support as possible. One big problem to watch for though is the ability of a business owner to hide income. He'll have such ability so you'll need to diligenty keep an eye on the success of his business and get the court/attorney to obtain future tax returns so you can actually review it. Discuss the hiding of income issue with your attorney.

Mr. Wondering

Mr. Wondering thanks for your response.

He did and does not have any kind of assets(as far as property/real estate) from the business other than income from the business itself. He set it up that he gets 1099's from a couple of companies that he teaches for. He actually did not make a profit until we started the business.

Yeah, I know the kids need the money but he is not included it in the child support calc. or as any income for that matter what do I do. When we were in mediation, the mediator said that the judge would NOT include self-employment income in the calc. she did not explain why but he had a smile on his face.

Yeah, I know it is not a healthy attitude to have by wanting to destroy his business but like I said it is not his wage earning job, it is just that I feel that it is part of my business too, the work I put into it and for him to walk away with it and continue his venture of sleeping with his students, I don’t feel is right. I feel that he should lose it b/c he is going to sleep with the wrong person and there will be a sexual harassment lawsuit against him.

Already talk to my attorney about him hiding the income b/c I have done the books and taxes for the past 6 years so I know how well the business did.

As there are no assets their really is no apparent value to the business. There is nothing for him to have to buy you out of. He could merely shut it down tomorrow. Unfortunately, you can't claim 1/2 his brain as marital property but since he's only using such a small part of it lately anyway I doubt 1/2 his brain would hold much value anyway. lol

As I am not a divorce attorney (I'm a tax attorney) I can't speak for why the mediator stated that. I can only guess that including the SE income as part of the wage base for child support would be too nebulous to calculate. It's not a fixed income. He could simply stop doing it at any time. It's difficult to collect on. He could hide the money too easily and report making nothing after expenses. If it historically is not a significant part of his income perhaps the Judge is likely to disregard it so as to avoid having to readdress the issue annually as the SE income fluctuates. It's just not a reliable income source. I do hope that means the Judge takes that into consideration when calculating the amount to be awarded withheld or voluntarily paid from his full time job.

Sorry, I just don't exactly know why they won't include it when calculating child support. I do wish you'd email me the answer when you get it. I'd like to know.

As far as marital property. The business sounds worthless. The question really boils down to. What would a third party purchaser pay him for the business? I imagine the answer is nothing. It's simply contract work that the third party would try to take from him not buy from him. If he had actual contracts. That may be a different story. Not sure. Again, ask your attorney.

Mr. Wondering

Mr Wondering,

When I go to court Wednesday, May 10, I will let you know what the judge says about including it in CS calc.

DIRECTIONS, COMMENTS FOR USE AND EXAMPLES FOR COMPLETION OF
FORM NO. 14 (Child Support Calc)
In General
Line 1: Gross income
DIRECTION: Enter one-twelfth of the parent's yearly gross income.
“Gross income" includes, but is not limited to, salaries, wages, commissions,
dividends, severance pay, pensions, interest, trust income, annuities, partnership
distributions, social security benefits, retirement benefits, workers' compensation
benefits, unemployment compensation benefits, disability insurance benefits, veterans'
disability benefits, and military allowances for subsistence and quarters.
Overtime compensation, bonuses, earnings from secondary employment, recurring
capital gains, prizes, retained earnings and significant employment-related benefits may
be included, in whole or in part, in "gross income" in appropriate circumstances.
3
If a parent receives rents or royalties or is self-employed, in a sole proprietorship,
or business with joint ownership, "gross income" is gross receipts minus the ordinary and
necessary expenses incurred to produce such receipts. Depreciation, investment tax
credits and other non-cash reductions of gross receipts may be excluded from such
ordinary and necessary expenses.
A. COMMENT: "Income" for purposes of computing the presumed child support
amount consists of a financial benefit or money received by a parent that could have a
positive impact on the parent's ability to support the parent's children.
D. COMMENT: Bonus: When determining whether to include bonuses and, if so,
the amount to include in a parent's "gross income," a court or administrative agency shall
consider all relevant factors, including:
(1) The consequence of exercise by the parent of periods of temporary physical
custody or visitation with the children who are the subject of this proceeding on the
parent's ability to receive a bonus;
(2) The motivation of the parent in earning bonuses during the three years, or such
time period as may be appropriate, immediately before the beginning of the proceeding
and during any other relevant time periods;
(3) The amount of the bonuses received by the parent during the three years, or
such time period as may be appropriate, immediately before the beginning of the
proceeding and during any other relevant time periods;
6
(4) The realistic expectation that the parent will continue to receive the amount of
the bonuses received during the three years, or such time period as may be appropriate,
immediately before the beginning of the proceeding and during any other relevant time
periods; and
(5) The number of additional dependents for whom the parent is financially
responsible, whether or not there is an existing court or administrative order under which
the parent is paying or receiving support.
I. COMMENT: Self-Employment Income Gross income from an unincorporated
business is the net profit or net loss on the schedules filed as part of the parent's federal
income tax return. However, expense reimbursements or in kind payments by the
business to pay for expenses of the parent that are personal in nature and not business
related may be income to the parent. Therefore, "gross income" of the parent for purposes
of computing the presumed child support amount may differ from the net profit or net
loss of the business for income tax purposes.

I did do a little research about the law here and it seems that it can be included if you use the business gain from the tax return. I will definitely email you and let you know what happens. Looks like his bonuses that he receives every year for the past 6 years can be included also.

And he actual does have annual contracts with these companies. So what does that mean?

Funny thing is that he is trying to get a credit for child care when he has the kids & has to teach but he is not even claiming the income from the business <img src="/ubbt/images/graemlins/eek.gif" alt="" />

Good job. You have your legal argument. It should be included the mediator was merely indicating that the judge is not likely to consider it. This sentence is operative:


It's the judges discretion. I can only guess the "circumstance" of 5 kids to provide for and the adulterous nature of his exit the Judge will likely hammer him and include it all. That's what I'd do. Perhaps the mediator was merely trying to pressure you to agree with what he/she perceived as a "reasonable" figure. He/she didn't want to work harder to invesigate your STBXH's income figures, he/she just wanted to accept them and get everyone to agree. I'm glad you didn't agree and your pushing this issue. If anyone is going to get more it will be you.

Again, only your local attorney will know your liklihood of success with this particular judge considering your states laws and his/her perception of it. Some judges just punish people for NOT coming to what they think is a reasonable agreement in mediation. They just can't be bothered with divorce cases and will delay, delay, delay attempting to force you to come to some agreement. They think they are doing you a favor because settlements are not appealled and usually the parties don't keep bringing the case back up year after year for modification.

I hope you got a fair and "not so swamped" judge that will hear your case out fully. IMO, it should be considered.

Good luck,
Mr. Wondering

p.s.- the business has contracts then it should have some value. Push for a payoff on such value.

Thanks Mr. Wondering,

Well my attorney included the self-employment income and the bonuses that he receives every year on our CS calc. His attorney, of course, excluded them.

The judge we have seems to be pretty fair. He seems to be very understanding. Before I started working and we went to court for the first time (STBXWH didn't show up), my attorney had told him that I was a SAHM and that child care was $400/week so what would be the since of working when I would give it all to daycare. STBXWH attorney did not agree that it was that much but the judge said “5 kids under 10; you can best believe that it is, if not more. I know my grandsons daycare cost are $165 and that is for one kid.”

I decided to go ahead and work since he had not started giving me CS and I had to support the kids and I. Well I like working b/c it makes me feels good and it gives me a break from the kids. STBXWH now does not want me to work b/c he does not want the child cost included in the CS, he wants to give me $2400/month ($1200/CS and $1200/SS). I know that he wants to make that much SS so he can get a tax deduction since CS is not. Wants me to pay the mortgage while he takes the interest deduction for taxes (he knows that I do taxes and I’m no fool). That is not even enough for me to pay the mortgage, utilities, food and bills every month for the 6 of us while he alone lives on $4000. Well I declined his offer b/c I can get CS, SS and wages from a job and come out ahead, and plus I will not have to depend on him b/c he has already proven he is undependable. I can establish my own credit and go back to school and finish my degree.

It has been almost 6 months since he filed and I have not gotten a dime of CS from him. He never shows up for court and until recently he has been rescheduling mediation until the mediator said that if he did not show up the last time that she will write a letter to the judge saying the he was noncompliant. He has not even been to parenting class yet so I am anxious to see in court Wednesday how much more he can get away with.

Just pray Wednesday that he will have to start paying CS and maintenance, also back support, I can't believe that he has gotten away with not paying for 6 months now.

Pepsi,

Thanks for posting on my thread. I just read your sitch. I can't believe he hasn't paid you for the past 6 months! He is a father of 5, and you were a stay-at-home mom! What is he thinking?

I am so sorry you have gone through this, but there is justice, and he has no choice but to start giving you CS and SS. Be sure to have those payments automated through his company's HR. Also, would the portion of the daycare, medical, extra curriculum activity fees included in the SS, or can you claim them separately? Ask your lawyer. I have only one child, yet it is very expensive to raise a child. Be sure to point out, also, that when some of your kids are sick, you cannot bring them to daycare, which means either you have to take a time off and stay home or hire someone to look after the kids (more money), so it will cost you whole a lot more than just the daycare costs. If you need to ask someone to drop off and/or pick up your kids, that may cost you additional as well. Be sure to include that.

Best of luck. You are a very strong super Mom!
Milk

Thanks Milk, STBXWH is not thinking at all.

Daycare and extra curriculum is included in the CS and he has to continue providing medical insurance for the kids.

I am going to ask for the $1200/month SS that he offered me also but with the full $3000/month CS.

I hope they go back 6 months for the back CS and SS that I have not been getting. He is going to owe me over $20,000, if they do. My attorney said that they will definitely go back, just don't know how far.

That's good. How have you been taking care of your kids, if your STBX is not paying anything? Are you okay?

Hey Milk, I have been getting some assistance from the state for childcare and food. And with my wages, I can afford ro pay the utilities, other bills and food that the state don't cover. I have been living on credit cards also that I had to open to support the kids and I. I cannot afford the mortgage though and STBXWH has not been paying it, it is 4 months behind. Which the judge will also hear about, I gave all the letters and statements from the mortgage co to my attorney so the judge will see that STBXWH is not even paying that.

My attorney told me not to worry about losing the house, he will see that that doesn't happen. This should look real good to the judge, show him how much STBXWH is not providing for the kids.

OK, I am glad that you have provided all the documentation to your lawyer. Your case sounds very promising, in terms of the expected outcome for the settlement - it will definitely be in your favor, as you were a stay-at-home-mom with 5 kids, and your STBX basically abandoned his family all together. If I were the judge, I would personally strangle your STBX. What kind of woman would like to stay with someone who is THAT irresponsible?? I don't understand.

Help my attorney just called and said that he, myself, STBXWH, & his attorney are going to sit down an hour before court and try to come to and agreement about CS and SS so we don't have to do the trial tommorrow.

I am suppose to meet with my attorney 30min before that. I really don't know why they are trying to get this done right before the trial. They had all of this time to try and do this. I feel pressured, I really don't want to do this.

I do know two things for sure, I will not be pressured to rush to a decision (looks like we will have to face a judge if he doesn't agree to everything I want) and I will not negotiate on CS b/c I need all of it that I'm required to get by law.

Oh, I just thought about that STBXWH is probably doing this so he doesn't have to face the judge since he has not been supporting his kids and he has not been showing up for things.

Also my baby is sick so I don't know what to do since he can't go to daycare and I can't find no one to watch him. I might have to be a no-show this time. <img src="/ubbt/images/graemlins/blush.gif" alt="" />

Here is my list so far, please let me know if I'm missing anything, this kinda caught me off guard;

the house
the van signed over to me
50% retirement and stock
$1200 SS (this is what he offered w/o me working)
Child Support and Maintenance goes through the state or court and not directly to me (this will give him some accountability) and they start NOW this month
Back CS and SS (from when he filed Nov 2005)
Him to pay my attorney fees (I can live w/o this since it isn't much)
Him to catch up the mortgage and taxes
Insurance for the kids (which is in the Parenting Plan)

How do I know what to settle for when he has not even given me his bank statements or current pay stubs when he got a raise?

Payoff on value of contract or include self-employment income in CS calc.

You've got to show. Come heck or high water you need to not allow him to keep scurrying away. The next hearing he'll likely have an emergency and you'll have to wait a whole month or more to figure this out. Further, the judge won't likely sense your desperation nor blame STBXH entirely for the delay if you prompt a cancellation of this final hearing. Take the baby with you if you are allowed and have no other choice.

They are desparately going to try to get you to settle. Grandpa Judge will likely hammer him but who knows. I'd have your attorney overestimate his legal bill and have that be the ONE thing you'll negotiate on.

Of course if they come within a hundred dollars or so of your demands then settle. Your STBXH will be much more likely to pay if it's an agreement he approves versus a Order imposed upon him by the court. As I am sure you are aware. a paying XH is much better than an deadbeat dad that quits working, thumbs his nose at the Order and/or flees the state. Be reasonable if you can but I doubt he'll come close to reality.

Mr. Wondering

pepsi,

I agree with Mr. Wondering, you have to show even if it means baby goes with you. You have been waiting so long to get his man ot pay don' put it off anylonger.

I am sure your attorney and the judge wil lunderstand the baby being sick and all.....

Be there with a smile on your face and dont let him intimidate you into backing down.... You can do this...


Hurting

A story:

I'm a judge in family court and a woman walks in with a baby wrapped up as well as the poor woman could do. The baby is obviously sick and hurting and his mother had to bring the baby because the daycare wouldn't take him. Then I turn to the husband who isn't wanting to help support this woman and her sick baby. I think the man's attorney should read the baleful look in my eyes. I think the attorney should have a quick discussion with his client before all h3ll breaks loose in my courtroom. I think the baby is going to get all the support he needs, or ever might need.

The End.

how about college costs for these kids???? and make sure life insurance covers your support...child and ss, and their college if something happens to him

Thanks guys for you replies,

I am excited and nervous at the same time but ready to get this ball rolling, finally.

Everyone, I WILL show up even if that means I have to take OUR sick baby, what other choice do I have.

MrW,
My attorney did say something about overestimating the bill. I think he thinks the judge will hammer him that is why he is trying to get me to settle so he does not have to face the consequences of his actions thus far. And yes I agree that a paying XH is better but it depends on how much SS he gives or offers but with childcare there is really no room for much.

Hurting,
Thanks, I am kinda looking forward to tommorrow hopefully I can start getting some funds to help support his kids. I will not back down b/c someone has to look out for the kids since he does not, he is just looking out for himself.

Longhorn,
Thanks, beautiful story. Lets just hope the judge is disgusted with STBXWH for abandoning his family and not providing any support for them all this time.

Nikko,
I will add those to my list, thanks.

Everyone, please pray that justice will served tommorrow and that everything will work out for our good.