Ask a Divorce Lawyer: Should I have to pay for daycare if I can watch the kids while my ex has them?

Question: I currently pay child support and 100% of daycare expenses for our two children. My ex-wife and I have joint custody. Over Christmas break when there was no school, my ex-wife claimed that I had to pay for our son while he went to daycare. I was under the assumption that I am only responsible for his after-school and summer daycare expenses, not school days off. Mind you the majority of the days that he will have off, fall under her days. 

Am I obligated to pay this? Also, she has had an increase in income and makes roughly $600 more than me per month. Would it be wise of me to take her back to court to get daycare expenses split?


Answer: The answer to whether you are obligated to pay for the daycare expenses during the winter break is dependent on the language in your marital settlement agreement or divorce decree.  If the language reads you are responsible for all daycare expenses then you would be responsible for the expense.  I would need to review the agreement or decree to tell you whether or not you are responsible for the expense.
In regards to a modification in support, I am assuming that your support order is in Wisconsin.  If this is the case, the answer depends on your placement schedule and her total monthly income.   
In Wisconsin, if you have less than 25% of the overnights in a given year, you would be a percentage payer.  In this scenario, her income is not taken into consideration in determining support; she could be making substantially more than you and you would still be responsible for the same amount in support.  Rather, your support payment is a fixed sum which was 25% of your gross monthly income at the time the support was ordered.  Because you pay 100% of daycare expenses, you may be able to (or already do) receive a reduction in the monthly support obligation that you pay to your ex.   
If you have more than 25% of the overnights, support is calculated using a shared placement formula which considers both of your respective incomes and the number of overnights you each have throughout the year.  If her income has increased and yours has not (or has decreased), your monthly support obligation (which should take into consideration the daycare expenses) should decrease.
In order to obtain a modification in support, there must be a substantial change in circumstances.  I know that she now makes $600 more per month than you, but I would need to know what she made before to determine if this warrants a change in support.  Typically, support is modified when the parent receives a raise that would lead to an increase of more than 15% and at least $50 per month.  
You should contact a domestic litigation attorney in Wisconsin to discuss the current placement and custody orders and to discuss whether you should file a motion to modify support.  Depending on the amount of time that has passed since the original placement order, you may be able to modify placement which may result in a reduction of support as well.  Cordell & Cordell recently opened an office in Milwaukee and we would be happy to discuss your case further.


Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.

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