Legal Questions? / Legal Answers!
Filing For A Motion To Modify.
"If a Judge has issued a final court
order on your case and you want to change
anything in that court order, you can file
a Motion to show why changes should be made.
There are three types of Motions that most
use in Family Court. They are: Motion To Modify, - Motion To Enforce - and Motion For Contempt. Each Motion should be a Post Judgement Motion
Filling. A "Post Judgement Motion meaning
a Final Court Order has already be established
and you are looking to change something in
that order. This could be Child Support Amount,
Visitation Schedule changes and even to change
Custody of who the children reside with.
Just a word of caution here, if both are
not in agreement with any change wanted on
the Court Order, a Family Attorney representing
you, may be your best bet."
Motion To Modify Child Support
What can I say about your Child Support?
Current, or Past?
Pay it!
Child Support is paid to the parent with
physical custody, to cover all things your
child has. Not just clothes, & toys.
I cringe when I hear someone say "I
pay my child support and my kid still needs
boots and clothing." Of course they
do! Do you think your child support pays
for only that? Your child support helps pays
for the rent, lights, food, everything your
childr(en) need. You are helping to pay for their up-keep. My hat goes off
to the parents who know this. Those who realize
that just because their ability to pay at
the moment may be unavoidable, they sill
want to contribute.
To those who work under the table just so
they don't have to pay. Shame On You! Your
child(ren) are the ones who suffer. But if
there is a Child Support Order already against
you and you do not pay, two things happen.
Your balance continues to increase weekly,
and the State takes away your rights to have
a license. Not just a Drivers license, a
Fishing, Hunting, and Boating license, a
Daycare license, Teaching license, Social
Worker License, Plumbing license, any license
you have to apply for through the State of
Maine, can be denied.
I know, sometimes paying your Child Support
isn't that easy. The parent with custody
of the child(ren) has just applied for benefits
through D.H.H.S. By doing so they have just
signed over the right for D.H.H.S. to collect
child support from you. How much? If you
have a Divorce agreement, you'll pay that
amount ordered in it. If the amount ordered
is now less that the Child Support Table
allows, they may take you to court for an
increase. If their is no child support order,
the amount will then depend on the number
of children involved and how much money you
earn. Your "profession" will determine
what the amount "earned" could
be. Then with the aid of the Child Support
Table, they will determine what amount you
will pay. If your unemployed don't worry,
D.H.H.S. uses that same Child Support Table
to determine how much you COULD earn! This
amount, which you will be charged each week,
is based on your "Ability To Gain Employment
and Earn That Amount".
How great is that! No court to worry about.
All tidy and neat.
However, not very fair in the economy we
now are facing. Especially if you now find
yourself unemployed. D.H.H.S. isn't going
to care you lost your job. You'll have to
take them to court and show the Judge your
current situation. You have to request it,
by filing a Motion to Modify your Child Support
payments. Because when YOU want to change
your child support amount, you have to file
a Motion to Modify to court and do so. D.H.H.S.
will be there. Child support is based on both parents combined
income, because both parents are libel for
their child(ren). Problem with this is, usually when one parent
collects State benefits, they do so because
they do not have an income! They do not have
an income and your "ability to pay"
becomes the only income used to base your
child support amount!
I believe the Child Support Table is not
a fair and accurate decision for basing your
Child Support Amount. My belief however,
isn't going to change anything.
Reasons To File a Motion To Modify.
There are several reasons to File a Motion
to Modify Order. One of course is to ask
for a modification of a current child support
Order. But, you can also file a Motion to
Modify Order because:
1. Some of the Parential Righst or Responsibilities
issues need to be changed.
2. Contact or Visitation schedule needs to
be changed
3. Primary Residence of the child(ren) needs
to be changed.
4. It may lower your currant Child Support
Obligation.
5. D.H.H.S. has based your child support
amount on the wrong profession.
6. At this time you are unemployed due to
a lay off, or an accident.
7. Your current wages are far less than when
the Child Support was ordered.
8. The other parent has obtained employment.
This motion is used to change something in
your final court order. However, it is not
something you can file just because your
upset over a missed visitation date or an
attachment of your paycheck has been done
for child support. You must be able to show
that there has been a "substantial change
in circumstances" since the last court
order. These changes include a change in
your income amount, work status, continued
visitation issues or a decline of your health.
Safety issues involving your child, your
ability to to care for or visit the child
and of course.. custody changes.
I was told by the Clerk of Court that the
filing fee would be $60.00. However after
reviewing the instructions on the packet,
it says that if you are filing just a Child
Support Order, the filing fee does not apply.
It's Free!. The $60.00 filing fee would only apply
to the other reasons listed above.
"Just a word of caution. You may want
to rethink going up against D.H.H.S. to modify
this Order if you are employed or making
more money now than when the Order was written.
The amount from the Child Support Table could
increase. Costs like Child Care ( so the
other parent can work ) medical and dental
insurance, could be an issue. Remember though,
most companies do not allow you to add anyone
to your insurance until a specific enrollment
date allows. If medical and dental insurance
is brought up, explain that you will have
to wait until that date approaches before
you can put anyone on your insurance. If
you do not know the date, tell the Judge
you would be willing to find out. The child(ren)
need medical insurance and will not taken
off Mainecare. You could be ordered to add
them when the date arrives, but I haven't
heard of anyone, without having a very good
income, having to do so. Remember, D.H.H.S.
only allows the other parent to collect for
a certain amount of time. They help them
seek employment and in fact, it is part of
the deal to collect benefits. Sooner or later
the other parent may go to work. If the other
parent is working, they are also libel for
all the "extras" as well. Maybe
filing the Motion to Modify will lower your
child support amount and if insurance is
an issue, both working parents are responsible."
Motion to Enforce - This Motion is used if the other party
isn't following the Final Court Order. This
form is used for child support enforcement,
or for any other order the person is not
following per the Judge's order. If you'd
like it enforced and you want the court to
enforce it, they can do so in several ways
including attachment of wages and jail.
Motion for Contempt - This step is used if the other party has
already been ordered through a court order
and a Motion to Enforce, and they still refuse
to follow the order. You will need a Judge's
approval to file this Motion. You will end
up having a formal hearing in front of the
Judge and there is no chance of Mediation.
At the formal hearing you will have to show
why and how the other person is not following
the Final court Order and show that you believe
they were capable to do so.
The website at Pinetree Legal and V.L.P.
has the Motion forms you need and the instructions
to fill them out. Click Here.
If you would like to comment feel free to
e-mail me at
smtracy8@gmail.com
My Final Thought...
"Motions To Modify cannot be filed just because
you do not agree with the Court's final order.
You need to show a substantial change of
circumstances in order to file a Motion.
This may include a loss of employment, a
permeant injury, or safety issues regarding
your child. For those looking to increase
their child support order, a Motion to Modify
can be filed after 3 years, without having
to show a substantial change of circumstances.Any change in your income or the other person's
income might change your child support order
by 15% or more,either increasing it or decreasing
it. If you need more help with filling out
court forms or have other questions about
your court case, you may be able to get help
from a Courthouse Assistance Project run
by the Volunteer Lawyers Project. The V.L.P.
has Attorneys in court houses around Maine
to help with advice on family law matters
and to help fill out and check your court
forms. V.L.P. has a schedule for their Courthouse
Assistance Program on their website or you
can click here."
Your Right To Remain Silent - Shut Up!
