Q: I pay $500 Alimony until November, and $1,166.94 in child support. Another $433.33 for day care is added in the child support plus $50 for back pay.
How can I take away the day care when she doesn’t work? She’s never worked. And do I still file a paper if alimony is ordered to stop in November? Or does it automatically stop?
A: Thank you for your questions. Child support is always modifiable if there has been a substantial and continuing change in circumstances that would necessitate a modification.
The issue here though is that you are claiming that she has never worked. If this is true then there has not been a change that would necessitate modification unless there has been another change in circumstances.
It is unclear from your question how the child support was entered originally. It does sound peculiar and like something that should be addressed by the Court. If you are able to file for the modification you should request day care records for the child through the disclosure process. If she cannot provide the records the Court should not include it in any calculation. If she can provide the records but she is not working, she would have to explain why she is unable to care for the child and why the day care expenses are necessary. If she is attending school it is possible that the Court would allow for the expense.
It is also unclear from your question whether or not your ex was imputed minimum wage for her income for the child support calculation. The Arizona Child Support Guidelines Section 5 E provides:
If a parent is unemployed or working below full earning capacity, the court may consider the reasons. If earnings are reduced as a matter of choice and not for reasonable cause, the court may attribute income to a parent up to his or her earning capacity. If the reduction in income is voluntary but reasonable, the court shall balance that parent’s decision and benefits therefrom against the impact the reduction in that parent’s share of child support has on the children’s best interest. In accordance with Arizona Revised Statutes Section 25-320, income of at least minimum wage shall be attributed to a parent ordered to pay child support. If income is attributed to the parent receiving child support, appropriate childcare expenses may also be attributed.
If this is the case and the Court imputed her minimum wage they could also have added reasonable child care expenses into the calculation. This would explain how the expenses were included originally. If there are no other changes you would not likely be able to remove those expenses.
The alimony award should stop automatically, but you can submit an Amended Income Withholding Order in November so that the Clerk is aware of the end of that order. The Clerk would have to issue a new Income Withholding Order that just withholds for child support and your child support arrears. I never trust that the order will stop automatically. I have represented too many parties that have had errors or delays result in overpayments that are difficult if not impossible to get back.
I definitely recommend proactively making the clerk and the clearinghouse aware of the end of any order so that you are not attempting to retrieve monies paid via withholding order.
