I have done a number of recent blogs about mistakes pro se litigants make. No, I am not picking on people who represent themselves when getting a divorce. Instead, the purpose of this series of blogs on the topic, is to avoid other people going through a divorce making similar mistakes. As many as 50% of all family law filings are with pro se litigants. In Milwaukee County, I am told that nearly 70% of all family law cases are pro se litigants. There be many reasons why a person decides they want to do their divorce case on their own; they may feel they can’t afford an attorney, or their case isn’t complicated enough to have an attorney, or that having an attorney will just make the case more expensive and drag things out.
While there is no law that says a person has to have an attorney representing them when getting a divorce, everyone can benefit from learning other’s mistakes. One frequent mistake that I see with people representing themselves in a divorce when there are minor children, is agreeing to either a “hold open” in child support or agreeing to a reduced child support monthly benefit, that deviates from the percentage guidelines, but offering no reason why there is a deviation and putting nothing down as a reference for what their incomes may be or what the calculation should be for support. The problem with doing it this way, is when one of the parties changes their mind down the road, post divorce and files a motion to modify support, one must prove a substantial change in financial circumstances. With no specific findings or statements made as part of the divorce as to why there was a deviation from the percentage guidelines for support, the court is simply stuck with playing a “guessing game” as to what went on during the divorce process. You can’t just change your mind after the fact and go back and say you now want support, if it was held open, or you want an increase if the amount you originally agreed upon was a lower amount of money than the guidelines. The legal test is you must show that there has been a significant and substantial change in the financial circumstances of the parties. This compares the parties’ current financial information to what existed at the time of the divorce.
So, what should one do? Let’s assume that the parties want to agree to “hold open” child support. Of course, most pro se litigants talk about “waiving support,” but you can’t terminate or waive child support, since it is a right that belongs to the children, and not the parents. The parties can, however, “hold open” child support. This means for whatever reason at the time of the divorce, the parties agree that neither parent will pay child support to the other. It is frequently appropriate where there may be an equal placement arrangement and the parties income are the same. Instead of just saying “child support is held open,” what the settlement agreement should say is something along these lines; “At the time of the divorce, the parties have a joint custody, equal placement arrangement. Their specific schedule is mentioned above under the custody and placement paragraphs contained in the agreement. The parties agree that their current gross monthly incomes are the same or similar. The husband makes $4,000 gross per month and the wife makes $3,800 gross per month. There are two minor children of the marriage. Utilizing the percentage guidelines, child support would be $38 per month. The parties agree to deviate from the percentage guidelines and agree to hold child support open, absent a significant and substantial change in circumstances in the future.”
Another example might be where the parties agree to deviate from the guidelines in the amount of support. Let’s propose that there are two children again in our scenario, and the parties have a 60/40 split of time. The wife makes $4,000 gross per month and the father makes $6,000 gross per month. Using the child support guidelines child support would be set at $525 per month. Instead of $525 per month, the wife is willing for the father to pay less money and they agree upon $300 per month. Their agreement simply says, “father shall pay $300 per month as child support.” As indicated above, this is a problem down the road where one of the parties comes back into court post divorce to have the monthly support modified. Instead of the language they have used, the parties should state in their settlement agreement something along these lines; “The parties have a shared placement agreement, with dad having 40% of the time and the mother having 60% of the time; at the time of the divorce, the mother makes $4,000 per month gross and the father makes $6,000 per month gross. There are two minor children. The parties agree to deviate from the percentage guidelines. Using DCF child support guidelines, child support would be set at $525. The parties agree that the husband-father may pay $300, which is $225 less than the full percentage guideline, recognizing the father’s involvement with the minor children and that the mother feels she can get by on less money each month.”
The more specific and detailed the reasons one gives in the marital settlement agreement, the more the court post judgment can quickly understand what went on during the divorce, why the deviation was made and what the calculation would have been had it been stated in the legal papers. Look at it as you are doing a favor for yourself as well as the court in being specific as to why you are not specifically following the law.
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