My ex-wife has become romantically involved with another man who has proposed to her. This guy has also been purchasing items for my three kids when they are with my ex-wife. Does this action allow me to seek child support from her? The divorce decree states that neither party is responsible for child support, but since my ex is now spending less and less of her own money on the kids because of the new man in her life, does this give me any substance for pursuing child support from her?
You have asked if you can seek a modification of child support based on your ex-wife receiving gifts for your children from her fiancé.
Indiana Code § 31-16-8-1 governs the Modification or Revocation of child support orders. Under this section, modification of a child support order may be made only upon (1). A showing of changed circumstances so substantial and continuing as to make the terms unreasonable; or (2). A showing that a party has been ordered to pay an amount in child support that differs by more than twenty percent (20%) from the amount that would be ordered by applying the child support guidelines; and the order requested to be modified or revoked was issued at least twelve (12) months before the petition requesting modification was filed. So, if there has been a “substantial and continuing” change in circumstances that makes your current support obligation unreasonable, or if you are over or underpaying by more than 20% and more than a year has gone by, the Court can and will modify your child support obligation.
Next, we would look at how your income is countable for child support purposes. Courts in Indiana look to the Indiana Child Support Rules and Guidelines (most recently amended January 1, 2010) for guidance into determining the proper amount of child support an obligor parent is to pay. Guideline Number 3, entitled “Determination of Child Support Amount” defines what “income” is countable to an obligor parent in determining child support. This Guideline makes a laundry list of items that are countable as “weekly gross income” in Indiana for purposes of child support calculation that is even more inclusive than taxable income under the Internal Revenue Code.
The Commentary to Guideline 3 of the Child Support Rules and Guidelines states:
“In calculating Weekly Gross Income, it is helpful to begin with total income from all sources. This figure may not be the same as gross income for tax purposes. Internal Revenue Code of 1986, § 61. Means‑tested public assistance programs (those based on income) are excluded from the computation of Weekly Gross Income, but other government payments, such as Social Security benefits and veterans pensions, should be included.”
The gifts your ex-wife is receiving may likely be treated as gifts, and not gross income. Because of this, it may be unlikely that a modification of child support would be warranted at this time. However, that analysis is being made without knowing the specifics of your case. You should seek out competent legal representation, particularly from an attorney who practices exclusively in domestic litigation.
I wish you the best in your endeavors to modify child support. Although I practice law in Indiana, I cannot give you legal advice without thoroughly reviewing your case. Do not rely on this information as establishing an attorney-client relationship. Contact an attorney immediately for assistance. Cordell & Cordell, P.C. does represent clients in Indiana. Thank you for submitting a question to Cordell & Cordell, P.C.
Jason P. Hopper is an Associate Attorney in the Indianapolis, Indiana office of Cordell & Cordell, P.C. where his primary practice is exclusively in the area of domestic relations. Mr. Hopper is licensed in the state of Indiana – All State and Appellate courts, US District Court Northern District Indiana, US District Court Southern District Indiana, US Bankruptcy Court Southern District Indiana.