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Child support modification- whose burden?

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Milwaukee Attorney David Karp

 

When a party is seeking to modify a child support order, depending on the party making the request, they are the party required to prove the case.

If someone is filing a motion to REDUCE the support payments, it is their burden to show a substantial and significant change in the financial circumstances to ask for the reduction. They do so, by bringing in the relevant financial information that existed at the time the last court orders were set, and bringing in  their current relevant financial information on what exists now. The prior information from the time of the previous court orders can largely consist of both parties’ financial disclosure statements that were used, along with the previous two years of tax returns. Having the tax return for the year in question when the orders were last set is also very helpful.

For current information, one should bring to court, a completed financial disclosure statement under oath, two years of the most recent tax returns, and current check stubs showing year to date gross and net monthly income. If a person’s hours at work were reduced or someone was let go, any written evidence from the employer may also help, recognizing however, that such letters may be objected to by the opposing party or their attorney on the basis of hearsay evidence. The court commissioner may or may not read such letters, but they certainly can’t read them if you don’t bring them with you and try.

As for child support, there is a presumption under Wisconsin law that after 33 months, it is presumed there has been a substantial change in circumstances, sufficient to have the court modify support.

You should run the child support calculations in advance of the hearing, and bring copies with you to court showing what you believe the new support order should be. Don’t expect or ask the court to run the calculations for you.

If the person filing the motion is seeking an increase, again after 33 months the presumption applies as to the substantial change. If within 33 months there is no presumption, but there is no law or prohibition on seeking the modification under Wisconsin law within those first 33 months from the last court orders.

The burden again is on the person seeking the modification. If you are filing a motion to ask for an increase in child support, you bear the burden of proof in court. You should bring with you to court both parties previously filed financial disclosure statements used at the time the last support order was set, two years of tax returns prior to the last court orders being set,  and the tax return for the specific year the orders were last yet. For current information, you should bring to court with you a current check stub from all places of work showing year to date net and gross income, a completed financial disclosure statement under oath, and two years of the previous tax returns.

If you have had time to do formal discovery prior to the time of the scheduled court hearing, you should also plan to bring with you to court, if they have been provided to you in advance, copies of your ex spouse’s or the other parent’s 2 years of the most recent tax returns, their completed financial disclosure statement, and copies of their most recent check stubs showing year to date gross and net income.

You should run in advance the child support calculations and bring copies with you to court. Don’t ask the court to run the calculations for you.

If you have not had sufficient time to make a formal discovery request for the other parents’ tax and relevant financial information, make sure on your order to show cause, the court signs an order requiring both parties to bring to the hearing a completed financial disclosure statement under oath, copies of their check stubs for the previous 12 years and 2 years of preceding tax returns. You may not have chance to review these documents in advance and they may be handed to you at the court hearing to review for the first time. In a perfect world, and to be fully prepared for the support modification hearing, you should try to have this information and documentation in advance.

If you have questions on child support modification, contact the experienced family lawyers at Karp & Iancu, S.C. today. We offer state wide legal representation on family matters and are recognized as being one the premier leading family law firms, in Milwaukee as well as the State of Wisconsin.

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