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jinnkel1210 · Dec 30, 2011, 09:42 AM

My husband has 2 children from previous marriage. His son turned 18 in April and is away at school... His daughter is 14. My husband filed for a child support modification.. to stop for his son and adjust for his daughter. In the divorce decree he is supposed to have them one evening a week and every other weekend but we do not get them that often and haven't for almost 2 years... all by their choice. Many times we have been unable to get in contact with his daughter and they even moved to a different residence and we didn't have an address until we asked for it... only to find out it is a gated community so we wouldn't have been granted access with out their approval. Because of their ages and the fact they told us they did not want to come over but rather be with friends,make other plans, etc... We didn't push the visitation. Now that the modification has been filed my husbands ex wife filed for a motion to dismiss. We are pretty sure that she is going to try and state that we never followed the visitation. Even if we tried to get them for our weekends but were told they were busy or had other plans already does that count against my husband? And would the court/judge allow the children themselves to "testify" if you will? And what grounds would she have to continue to collect support for their son who is 18 and away at school when it states in their divorce decree that this is when child support should stop? My husband is representing himself... hiring a lawyer is not an option right now financially. Thank you for taking the time and for any information you have to share.

JudyKayTee · Dec 30, 2011, 10:08 AM

Where? Without knowing the State/Country it's pretty much guessing at the Law BUT -

In all places support and visitation are totally different matters. You can have visitation without paying support and pay support without having visitation. Visitation can be ordered but you CANNOT force a person to be a good parent; likewise, you cannot force "almost" adult children to be good children.

IF the divorce decree actually states that support stops at a certain age or under a certain circumstance (away at school), yes, child support stops when that plateau is reached. However, the Courts currently are "usually" ordering child support to continue during at least some of the College years because the custodial parent maintains the primary residence and the child needs a home to come back to during breaks, vacations, etc.

Does that address all of your concerns?

ScottGem · Dec 30, 2011, 10:11 AM

First, ANY question on law needs to include your general locale as laws vary by area. But areas keep visitation and support separate issues with each independent of the other. So if your husband is going to argue that he should pay less support because he doesn't get to visit with his children as often as allowed, he will lose. As soon as he mentions visitation the judge will likely stop him and tell him that doesn't matter in consideration of support. Support can be modified based on changes in financial circumstances, not visitation.

If he doesn't like not visiting with his children then he should go to court to enforce the terms of the visitation schedule. Then the custodial parent can argue that he has not been exercising his rights and he can counter claim that his children have been the ones refusing visitation.

jinnkel1210 · Dec 30, 2011, 10:13 AM

Does the child support actually get modified though based on the fact that he is only home a small percentage of the year now? We are in Florida.

jinnkel1210 · Dec 30, 2011, 10:15 AM

We are not trying to get it modified because we don't see them... that is not it at all. We have always wanted them here and made that known to them... along with trying to communicate this to them. We just want the child support modified because his son is now 18... we would rather be able to send him money ourselves and know exactly where that money is going.

JudyKayTee · Dec 30, 2011, 10:16 AM

Originally Posted by jinnkel1210

Does the child support actually get modified though based on the fact that he is only home a small percentage of the year now? We are in Florida.

Maybe I didn't make myself totally clear - support and visitation are totally different matters.

The children still eat, require shelter and clothing, whether their father is home or not, has time to visit, doesn't have time to visit, they want or don't want to visit.

Child support is modified by sufficiently changed circumstances - drop in income, increase in income, something else.

Bottom line - what does your husband hope to accomplish? Pay less support? Enforce his visitation? Have telephone contact with the children? Something else? I have stepchildren and the personal advice (which is probably out of place here) is that FORCING the 14-year old to visit with her father will be a disaster.

I would maintain contact (greeting cards, gifts - however small, maybe tokens) but I would not allow anyone to ever say that he ignored his children.

Fr_Chuck · Dec 30, 2011, 10:17 AM

The motion for reduction of child support can not be based on visits. It has nothing to do with if or if not there are visits.

If the child support order said that it is to end at age 18, there is no basis to dismiss. If the court order said it was to last till they were 21 then the order will be dismissed.

If the court order did not say when it was to end, then it will have to be argued in court according to the state law where the order was issued.

Again, visits have nothing at all to do with it.

jinnkel1210 · Dec 30, 2011, 10:25 AM

Thank you Judy... I do understand. You hit the nail on the head... we never wanted to "force" either of them to be here but always let them know this is their home as well and they are ALWAYS welcome... anytime! A lot of the communication happens via text from my husband to his ex wife... so when she tells us that they are busy or have plans we have to accept that.

jinnkel1210 · Dec 30, 2011, 10:31 AM

One more question... what do we do now that she has filed this? Is there something else we need to file?

ScottGem · Dec 30, 2011, 10:31 AM

Originally Posted by jinnkel1210

We are not trying to get it modified because we don't see them...that is not it at all.

Forgive us but since your stated reasons centered on the visitation issue we assumed that was going to be part of your claim.

Originally Posted by jinnkel1210

we just want the child support modified because his son is now 18...we would rather be able to send him money ourselves and know exactly where that money is going.

You said earlier that; "And what grounds would she have to continue to collect support for their son who is 18 and away at school when it states in their divorce decree that this is when child support should stop?"

What exactly does the divorce decree say? If it does say that support ends at 18, then just stop paying. If support is being collected by a state agency, then he will have to go to court to get it stopped.

The point is that is and should be his ONLY argument. He says to the judge that my divorce decree states that support continues until the child is 18 and finished with High School (or whatever it actually says) so support for that child should now end. This should be granted as long as the divorce decree is clear.

If he wants to continue to provide an allowance for the older child that is up to him.

ScottGem · Dec 30, 2011, 10:43 AM

Originally Posted by jinnkel1210

Alot of the communication happens via text from my husband to his ex wife...so when she tells us that they are busy or have plans we have to accept that.

Most kids these days have cell phones, e-mail accounts, etc. He should communicate directly and not rely on what the ex says.

Originally Posted by jinnkel1210

One more question....what do we do now that she has filed this? Is there something else we need to file?

Unless there is a separate hearing scheduled for her motion, then you probably don't need to do anything. Check with the court clerk. Are there any grounds listed in her motion?