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– from Jason P. in Brown Deer, WI

Question Details:

I have been divorced for about five years. My wife has custody of the children and I pay support. I am a small business owner and out of those  five years, two of them were amazing, but three of them were pretty rough. During the course of the last five years, I've fallen behind on my child support payments. Can I make a motion to retroactively decrease or nullify my arrearages?

Family Law Attorney Response:

Anything is possible, however, you would need to substantiate your reasoning. In your question you stated that two of the last five years were “amazing.” Just how amazing were they? If those two years balanced out the shortcomings of the other three years, that would not count as a justification to reduce or nullify arrearages.

This is seen in the case of O’Brien v. Freiley 130 Wis. 2d 174, 387 N.W.2d 85 (Ct. App. 1986). In this situation, among other details, the court decided to adjust support effectively reducing arrearages for the years of hardship. Upon appeal, the court reversed the decision to retroactively adjust the support based on the method that was used to adjust the support. The court of appeals stated that the trial court should have taken a broader view, instead of only looking at individual years. Overall, it was found that his income actually increased.

My advice is to consult an experienced family law attorney right away to discuss the details of your child support case.

Dan Exner, J.D.

Family Law Attorney

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