Motion for amending divorce agreement

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Motion for amending divorce agreement

Unread postby funky » Sat Feb 25, 2017 8:37 pm

Hello all.

Here's the situation. Divorced 2 years ago. 3 kiddos. 50/50 custody. Divorce/separation states that I can claim them as dependents on the taxes every year. Located in Colorado.

My ex just filed a motion with the court to amend the agreement so that we split claiming the kids on taxes 50/50, including amending 2015 taxes. There has been no change in circumstance, just that she feels that it "has proven to be a significant hardship" (financially) to not be able to claim the kids.

Is this something that is likely to be approved by the court? What's the best way to fight something like this? Should I re-engage my lawyers, or is this even worth fighting?

Thanks for any advice!
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Re: Motion for amending divorce agreement

Unread postby BartSimpson » Sat Feb 25, 2017 8:46 pm

Hello again.

Did you end up with a mediated settlement agreement?
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Re: Motion for amending divorce agreement

Unread postby funky » Sat Feb 25, 2017 8:50 pm

I'm not sure I understand your terminology exactly.

We have a finalized divorce decree which includes our separation agreement. There is language in the agreement requiring mediation before bringing issues before the court. This did not happen, she just filed the motion for amendment and sent me notification.

Note that the mediation language specifies that it only applies to parenting time issues, which this doesn't necessarily fall under.
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Re: Motion for amending divorce agreement

Unread postby BartSimpson » Sat Feb 25, 2017 8:57 pm

Well, it sounds like you guys reached an agreement, and you didn't go to trial. It kinda means the mother is stuck with what she agreed to - particularly this soon after the agreement.

File your taxes soon, and claim what was ordered.

The mother's motion should be addressed first with a Motion to Dismiss. The mother can then demand mediation, and you can kick that can down the road for a few months. This type of matter could be delayed for a significant period of time applying routine legal tactics. Delay is on your side, as it will weaken the mother's argument.

What's going on here - is she broke or mad at you?
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Re: Motion for amending divorce agreement

Unread postby funky » Sat Feb 25, 2017 9:04 pm

We did reach an amicable agreement. We both sat in front of the magistrate, who asked about each part of the separation agreement, and she agreed that it was all fair.

She's broke. She bought a brand new car a few months ago, got in an accident (she was not injured, but the car was heavily damaged) and didn't have car insurance lined up properly.

She's also refusing to pay for kids' braces, which the orthodontist said are medically necessary, and the agreement says she has to split 50/50, so I have to work through that issue as well.

Thanks for the advice. I'll file the motion to dismiss and go from there.

I love this forum. You guys rock.
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Re: Motion for amending divorce agreement

Unread postby BartSimpson » Sat Feb 25, 2017 9:16 pm

Is there that much in the deduction to make it worth her while, or is this just the only thing she could complain about?

Regarding that Motion to Dismiss, you might want to buy an hour of a lawyer's time to help you prepare it, but otherwise file it and argue it pro se. This is called Unbundled Services with lawyers, and they don't represent you, but help you get the paperwork correct. You don't argue your case in the motion, but essentially you will be arguing that she agreed to this, that she is required to mediate, and that her motion is premature. Your One-hour lawyer should help you get that arguement together.

It's up to you if this is the opportunity to show her you will fight future modifications tooth and nail. I wouldn't make it easy on her, in fact, any counter motion should put some skin in the game for her. You can't ask for fees when you are pro se, but if this escalates - you be demanding fees for your bulldog lawyer sitting next to you, growling and snarling at the mother.

How the kids?
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Re: Motion for amending divorce agreement

Unread postby funky » Sat Feb 25, 2017 10:44 pm

The only reasoning she gave me is that she wants to go back to school and thinks that this will help with financial aid. And maybe it will, but she's a "strong independent woman who doesn't need a man to take care of her" (other than thousands a month in alimony, of course), so she should figure it out.

I'll definitely be calling my lawyer on Monday. Thanks for the tip about unbundled services. That's the route I'll be taking for now. It's worth a few hundred bucks to stop this kind of thing now. I know her well enough that if I let this slide, she'll be back for more the next time she is struggling.

Kids are doing as well as can be expected. Thanks for asking!
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Re: Motion for amending divorce agreement

Unread postby astrolink » Sat Feb 25, 2017 10:52 pm

With you having 50/50 and the tax deduction for 3 kids every year, it sounds like are able to file as head of household and her as single.

I suspect she wants to file as head of household with the 3 kids, making her eligible for all kinds of benefits.

If she quit her job and went to school, she could get a full welfare ride while at school and much more financial aid, but only if she is the head of household.

Does this fit your situation?
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Re: Motion for amending divorce agreement

Unread postby funky » Sat Feb 25, 2017 11:06 pm

Yes astrolink, I think that sums it up well.

Why does her being able to file as head of household affect that? Because instead of being a single person, she's now a single parent of 3 kids?
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Re: Motion for amending divorce agreement

Unread postby astrolink » Sat Feb 25, 2017 11:13 pm

It varies from state to state, but in mine it would make her eligible for the earned income credit, the working family credit, assisted daycare, free medical and welfare cash, plus other tax benefits of claiming 3 kids.

When filing single, you can't get those benefits. And, if she was able to file for those, that state would come after you for reimbursement for some of it depending on your income.
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