CHILD SUPPORT MODIFICATION AND CONTRACTS:
It is fairly common knowledge that child support is modifiable based on a change of circumstances, such as an increase or decrease in income. What most people do not know is that there are some traps. The following are some that fathers should be aware of if they are negotiating their own settlements.
1) If you agree to pay more child support than required by the Michigan Child Support Formula, you may not be able to request a modification. Pursuant to the Michigan Court of Appeals, in Holmes v Holmes, 281 Mich App 575, 760 NW2d 300 (2008), a payer of support is bound by an agreement to pay more child support absent any specific language indicating the overpayment of support is modifiable. In the Holmes case, the payer of support agreed to pay a percentage of his gross bonus on top of his ordinary child support payment. It is fairly common for individuals to bargain for this type of provision in child support orders if bonus income is unreliable. During settlement negotiations, the parties came up with the percentage based on a ratio of the payer's gross monthly income and his monthly child support obligation. When the payer's monthly income decreased, he sought a decrease in the percentage of the bonus income he was paying. The court denied his request on the basis that the provision in the Judgment discussing this bonus payment did not clearly indicate that the percentage was modifiable. The court applied contract principles in the analysis. The court found that there was no ambiguity, so it could not read into the intent of the parties at the time the agreement was made.
2) An agreement to pay less support is unenforceable absent a provision indicating that a certain amount of property/money was provided to the payee in lieu of making child support payments. 2008 MCSF 4.03. In order to be enforceable, the agreement must state the appropriate deviation language found in MCL 552.605 and the exact dollar amount of property/money payee is receiving in exchange. After the child support that should have been paid equals the amount of property awarded to the payee under the agreement, child support is then awarded pursuant to the Michigan Child Support Formula.
3) You cannot make an agreement stating if child support is awarded spousal support will be awarded in the same amount. This was deemed a violation of the public policy that parents cannot waive their children's right to support. Laffin v Laffin, 280 Mich App 513, 760 NW2d (2008). It was found that the provision was also inconsistent with the laws regarding spousal support.
4) A court cannot order a parent to pay post-majority support for a child. However, an agreement to pay post-majority support, such as college expenses is enforceable. Wagner v Wagner, 105 Mich App 388, 306 NW2d 523 (1981). Thus, if you lose your job or income, you may still be obligated to pay for these expenses. It would behoove you to make sure any agreement regarding post-majority support is deemed modifiable child support and not a property settlement which is not modifiable.
Even with all of this information a father facing a child support issue should contact us or another qualified attorney to get assistance.
FACEBOOK and other networking sites
It is usually expensive and difficult to show how some Moms are really. As we all know there are some terrible ones that can put themselves together just long enough to fool the court. Facebook, MySpace, Twitter, etc. sometimes give us the evidence we need to show she is a fraud. We aren't the only ones that have figured this out. There are many articles out there that explore this topic including Facebook and Divorce: Airing the Dirty Laundry - TIME and Facebook is divorce lawyers' new best friend - Technology & science - Tech and gadgets - msnbc.com. Any man facing divorce, custody/parenting time, or support issues would be wise to review the evidence they have put out in networking sites and go looking for evidence she has put out there.
PPOs are sometimes necessary
We don't love Personal Protection Orders (PPOs) at Gordon & Shaw because they are sometimes used as a sword to separate a man from his children or house without any hearing based upon one-sided false or embellished allegations. However, they have their place. Take for example the case of Samuel Cordaryl Clark, age 24. Mr. Clark died when his ex-girlfriend chased his car down 28th Street at 100 miles per hour. At this point we don't know if his ex-girlfriend had done anything like this before but it is obvious that he did not want to be confronted by her. Had he had a PPO and drove to the police station, his ex-girl friend would have gone to jail and he may have lived. Some men need a PPO but are skeptical that they will not be taken seriously by the court or believe that they can take care of themselves. Men are right to be skeptical of the court but that should not stop them. We have had clients obtain PPOs. Preparation is key. What worries us more is the men that believe they can take care of themselves, because they tend to get themselves in trouble. Believe me, there are men in Grand Rapids that have a domestic abuse convictions on their record even though they were only acting in self defense. If a man feels threatened he must get the court's help. For more on Mr. Clark see http://www.mlive.com/news/grand-rapids/index.ssf/2010/10/woman_who_alledgedly_chased_bo.html#incart_mrt
Affidavits of Parentage: What Every Unmarried Father in Michigan Needs to Know
Unmarried fathers are presented with unique legal challenges. They are generally presented with an Affidavit of Parentage at the hospital after a child is born and told to sign it without any explanation. Fathers regularly sign the Affidavit without understanding it or how signing it affects their rights. As a result, many unmarried fathers leave the hospital with little or no understanding of what their rights are as fathers and what they need to do to assert those rights. Similarly, fathers not present at the birth of a child often do not know what they need to do to protect their rights.
The Affidavit of Parentage is a form signed by both parents that acknowledges that the parents are the natural parents of the child. By signing the Affidavit, the parents affirm their parentage of the child under penalty of perjury. Therefore, a father who is not 100% certain that he is the natural father of the child should not sign the form without further investigation or seeking legal advice.