The court has ordered me to pay a set amount each month of variable expenses, which is different from the child support order.
I find the current fixed amount is too high, so I would like to lower this payment and just pay variable expenses as they are needed. Of course, my ex-wife thinks I should be paying more.
How difficult is it to modify the variable support order?
I can provide you with some general divorce help for men regarding the issue in your question, though for specific legal advice on divorce you should consult with a divorce lawyer in your jurisdiction.
In Wisconsin (where I practice), the court will set a child support order based on the number of marital children, the placement schedule, and if the parties are exercising shared placement, the income of both parties.
The court must apply the formula to calculate support but does have the authority to deviate from the use of the formula if, after considering the statutory factors, the use of the formula would be unfair to the child or to either of the parties.
In addition to standard support orders, courts will also order parties to contribute to variable expenses in proportion to their share of placement. For example, if one parent has the children for 30% of the overnights throughout the year, he or she would pay 30% of the variable expenses.
In your situation, each party would pay for 50% of all variable expenses. As an alternative, the parties can agree to a variable support order which fixes the amount that will be reimbursed to one of the parents.
Variable expenses are defined as stated in the Wisconsin Statutes as the reasonable costs above basic support costs incurred by or on behalf of a child, including but not limited to, the cost of child care, tuition, a child’s special needs, and other activities that involve substantial cost.
As you can see, the statute is not entirely clear as to what should be paid with what a party would receive via child support versus what should be considered a variable expense and therefore split by the parties. Extracurricular activities, private school tuition and daycare expenses are certainly variable expenses.
The provisions for variable expenses relate to the support of the child, therefore, either party can request a modification if there is a substantial change in the income of either party or the expenses for the children. This request is made via a motion to modify with a supporting affidavit which is sent to the court along with the filing fee.
Since you believe the current variable expense order is unfair, the best course of action is to present the court with accurate evidence of the actual variable expenses for the children and compare this figure to the amount you are paying per month.
Variable expenses may fluctuate from month to month, so you can calculate the total variable expenses for the year and you can divide that figure by 12. If there is no other support order, you probably should not be paying more than 50% of the actual variable expenses.
I do have to warn you however that if you file this motion and you have exposure for child support, you can expect she will file a counter-motion to modify child support. Based on the information you provided, child support is held open as to each party.
However, unless you earn the exact same, one of you has child support exposure. You should be sure to contact a domestic litigation attorney prior to taking any action so that you do not end up putting yourself in a worse position.
Again, because the answer to your question will depend on whether the practice in your state is consistent with the laws of Wisconsin, I encourage you to speak to a domestic litigation attorney for financial advice on divorce.
Cordell & Cordell has men’s divorce lawyers located nationwide. To schedule an appointment with a divorce attorney, including Daniel Exner, a Staff Attorney in the Milwaukee, Wisconsin, office, please contact Cordell & Cordell.