LEGAL CORNER: How can I get my child support payments changed?

VIDEO: LEGAL CORNER - How can I get my child support payments changed?

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QUESTION: If I were injured on my job, how should I proceed regarding whether to file a workman’s compensation case or a personal injury lawsuit?

ANSWER: Under workers’ compensation law, benefits are available to a worker who is hurt on the job, and no proof of fault needs to be made for benefits to be paid. All that needs to be established is that the injury occurred on the job and is connected somehow with the work the employee performed and generally an injured employee receives income equivalent to about two-thirds of their average wage on a weekly or bi-weekly basis. And this income is non-taxable. However, Personal injury lawsuits are not limited to any specific class of people. If someone is injured due to the negligence of another person may bring a lawsuit against that person, but to recover any damages, the injured party must prove that the other person was at, or negligent, and did cause the injury

When an employee is injured on the job, they can either file a workers’ compensation claim or a personal injury lawsuit, but many people don’t understand the difference between the two. A worker injured on a jobsite would generally file a workman’s compensation case, however at times a lawsuit may be in their best interest.

Louisiana uses the NCCI classification system. NCCI stands for The National Council on Compensation Insurance. Louisiana is under the state jurisdiction of NCCI, and uses NCCI’s Statistical Plan for Workers Compensation and Employers Liability Insurance.

Workers compensation is an insurance policy administered by the workers’ compensation boards of individual states. There is also federal workers’ compensation insurance for federal employees that is administered by the federal government.

Under workers’ compensation law, benefits are available to a worker who is hurt on the job, and no proof of fault needs to be made for benefits to be paid. All that needs to be established is that the injury occurred on the job and is connected somehow with the work the employee performed and generally an injured employee receives non-taxable income equivalent to about two-thirds of their average wage on a weekly or bi-weekly basis.

Personal injury lawsuits are not limited to any specific class of people. If someone is injured due to the negligence of another person may bring a lawsuit against that person, but to recover any damages, the injured party must prove that the other person was at, or negligent, and did cause the injury. Settlements are compensatory and usually include medical expenses, lost income or future earning capacity and possibly even pain and suffering.

While the payoff can be much higher in a personal injury case than in workers’ compensation, personal injury cases typically take much longer to come to an agreement and get finalized, and because negligence must be proven, they are usually much harder to win. There are so many determining factors that consulting either a workers’ compensation or personal injury attorney would be highly advised.

QUESTION: I recently moved into a rental property and the owner allowed me to to pay my security deposit and 1st months rent at a reduced rate. He said he had forgotten the contract, but we would get it signed later. After 30 days and he called me and said if I did not show up to his home with the next month’s rent then I would be evicted. Is the owner allowed to do that?

ANSWER: Yes the owner can. A Landlord may evict a tenant for non-payment of rent, because he/she wants the property back or because the lease agreement has expired and he/she does not choose to renew the agreement. The Landlord must provide the tenant a location or method of payment.

LA Civ Code Art. 2703 When and where rent is due. In the absence of a contrary agreement, usage, or custom: (1) The rent is due at the beginning of the term. If the rent is payable by intervals shorter than the term, the rent is due at the beginning of each interval. (2) The rent is payable at the address provided by the lessor and in the absence thereof at the address of the lessee.

QUESTION: I work construction and was recently laid off. My child support payments are around $1000 a month which I cannot afford on unemployment alone. My children’s mother has remarried and her husband received a settlement near $700,000 just last week. Can this be taken into consideration to modify my payments until I return to work?

ANSWER: A judge can consider a new spouse’s income when deciding whether to modify support. Then financial contributions of the new spouse are relevant to child support. A support award can be adjusted if the award is over three years old or if there’s been a material change in the parents’ circumstances Specifically, in one Louisiana support case, the court reduced a father’s child support obligation where the father had lost his job while the mother quit her job and was supported by her new husband. The court did find a substantial change in circumstances existed because the father’s income was limited to unemployment checks while a new spouse covered the mother’s expenses

In Louisiana, a material change exists if the new support order would result in a 25% difference based upon the parents’ new incomes. Moreover, a major increase in a child’s needs or expenses would also constitute a material change in circumstances.

LA Rev Stat § 9:§311. Modification of support; material change in circumstances; periodic review by Department of Children and Family Services; medical support

A.(1) An award for support shall not be modified unless the party seeking the modification shows a material change in circumstances of one of the parties between the time of the previous award and the time of the rule for modification of the award.

(2) The Department of Children and Family Services shall prepare and distribute information, forms, and rules for the modification of support orders, in accordance with this Subsection, and for proceeding in forma pauperis. The information provided by the Department of Children and Family Services shall specifically include what may constitute a material change in circumstances. The clerks of court in all parishes shall make this information available to the public upon request. When the initial support order is entered, either the court or the department, if providing services, shall provide this information to the parties.

B. A judgment for past due support shall not of itself constitute a material change in circumstances of the obligor sufficient to reduce an existing award of support.

C. For purposes of this Section, in cases where the Department of Children and Family Services is providing support enforcement services:

(1) A material change in circumstance exists when a strict application of the child support guidelines, Part I-A of this Chapter, would result in at least a twenty-five percent change in the existing child support award. A material change in circumstance does not exist under this Paragraph if the amount of the award was the result of the court's deviating from the guidelines pursuant to R.S. 9:315.1 and there has not been a material change in the circumstances which warranted the deviation.

(2) Upon request of either party or on its own initiative and if the best interest of the child so requires, the department shall provide for judicial review and, if appropriate, the court may adjust the amount of the existing child support award every three years if the existing award differs from the amount which would otherwise be awarded under the application of the child support guidelines. The review provided hereby does not require a showing of a material change in circumstance nor preclude a party from seeking a reduction or increase under the other provisions of this Section.

D. A material change in circumstance need not be shown for purposes of modifying a child support award to include a court-ordered award for medical support.

E. If the court does not find good cause sufficient to justify an order to modify child support or the motion is dismissed prior to a hearing, it may order the mover to pay all court costs and reasonable attorney fees of the other party if the court determines the motion was frivolous.

F. The provisions of Subsection E of this Section shall not apply when the recipient of the support payments is a public entity acting on behalf of another party to whom support is due.

G. A modified order for support shall be retroactive to the filing date of the rule for modification

Can a Judge Consider a New Spouse’s Income?

A judge can consider a new spouse’s income when deciding whether to modify support. Louisiana’s child support guidelines base child support on the income of the child’s parents – not their spouses. However, a new spouse’s financial contributions are relevant to child support. Specifically, in one Louisiana support case, the court reduced a father’s child support obligation where the father had lost his job while the mother quit her job and was supported by her new husband. The court found a substantial change in circumstances existed because the father’s income was limited to unemployment checks while a new spouse covered the mother’s expenses.

LA Rev Stat § 9:315

PART I-A. CHILD SUPPORT

SUBPART A. GUIDELINES FOR DETERMINATION OF CHILD SUPPORT

§315. Economic data and principles; definitions

A. Basic principles. The premise of these guidelines as well as the provisions of the Civil Code is that child support is a continuous obligation of both parents, children are entitled to share in the current income of both parents, and children should not be the economic victims of divorce or out-of-wedlock birth. The economic data underlying these guidelines, which adopt the Income Shares Model, and the guideline calculations attempt to simulate the percentage of parental net income that is spent on children in intact families incorporating a consideration of the expenses of the parties, such as federal and state taxes and FICA taxes. While the legislature acknowledges that the expenditures of two-household divorced, separated, or non-formed families are different from intact family households, it is very important that the children of this state not be forced to live in poverty because of family disruption and that they be afforded the same opportunities available to children in intact families, consisting of parents with similar financial means to those of their own parents.

B. Economic data.

(1) The Incomes Shares approach to child support guidelines incorporates a numerical schedule of support amounts. The schedule provides economic estimates of child-rearing expenditures for various income levels and numbers of children in the household. The schedule is composed of economic data utilizing a table of national averages adjusted to reflect Louisiana's status as a low-income state and to incorporate a self-sufficiency reserve for low-income obligors to form the basic child support obligation.

(2) In intact families, the income of both parents is pooled and spent for the benefit of all household members, including the children. Each parent's contribution to the combined income of the family represents his relative sharing of household expenses. This same income sharing principle is used to determine how the parents will share a child support award.

C. Definitions. As used in this Part:

(1) "Adjusted gross income" means gross income, minus amounts for preexisting child support or spousal support obligations paid to another who is not a party to the proceedings, or on behalf of a child who is not the subject of the action of the court.

(2) "Combined adjusted gross income" means the combined adjusted gross income of both parties.

(3) "Gross income" means:

(a) The income from any source, including but not limited to salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, recurring monetary gifts, annuities, capital gains, social security benefits, workers' compensation benefits, basic and variable allowances for housing and subsistence from military pay and benefits, unemployment insurance benefits, disaster unemployment assistance received from the United States Department of Labor, disability insurance benefits, and spousal support received from a preexisting spousal support obligation;

(b) Expense reimbursement or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business, if the reimbursements or payments are significant and reduce the parent's personal living expenses. Such payments include but are not limited to a company car, free housing, or reimbursed meals; and

(c) Gross receipts minus ordinary and necessary expenses required to produce income, for purposes of income from self-employment, rent, royalties, proprietorship of a business, or joint ownership or a partnership or closely held corporation. "Ordinary and necessary expenses" shall not include amounts allowable by the Internal Revenue Service for the accelerated component of depreciation expenses or investment tax credits or any other business expenses determined by the court to be inappropriate for determining gross income for purposes of calculating child support.

(d) As used herein, "gross income" does not include:

(i) Child support received, or benefits received from public assistance programs, including Family Independence Temporary Assistance Plan, supplemental security income, food stamps, and general assistance.

(ii) Per diem allowances which are not subject to federal income taxation under the provisions of the Internal Revenue Code.

(iii) Extraordinary overtime including but not limited to income attributed to seasonal work regardless of its percentage of gross income when, in the court's discretion, the inclusion thereof would be inequitable to a party.

(iv) Any monetary gift to the domiciliary party when the objective of the gift is to supplement irregular child support payments from the nondomiciliary party.

(v) Any disaster assistance benefits received from the Federal Emergency Management Agency through its Individuals and Households Program or from any other nonprofit organization qualified as a tax-exempt organization under Section 501(c) of the Internal Revenue Code of 1954, as amended.

(4) "Health insurance premiums" means the actual amount paid by a party for providing health insurance on behalf of the child. It does not include any amount paid by an employer or any amounts paid for coverage of any other persons. If more than one dependent is covered by health insurance which is paid through a lump-sum dependent-

coverage premium, and not all of such dependents are the subject of the guidelines calculation, the cost of the coverage shall be prorated among the dependents covered before being applied to the guidelines.

(5) "Income" means:

(a) Actual gross income of a party, if the party is employed to full capacity; or

(b) Potential income of a party, if the party is voluntarily unemployed or underemployed. A party shall not be deemed voluntarily unemployed or underemployed if he or she is absolutely unemployable or incapable of being employed, or if the unemployment or underemployment results through no fault or neglect of the party.

(c) The court may also consider as income the benefits a party derives from expense-sharing or other sources; however, in determining the benefits of expense-sharing, the court shall not consider the income of another spouse, regardless of the legal regime under which the remarriage exists, except to the extent that such income is used directly to reduce the cost of a party’s actual expenses.

Disclaimer: The information furnished in this answer is general and may not apply to some situations. All legal situations are unique. No one should rely to their detriment on these answers. Anyone with a potential legal problem should seek the advice of a licensed attorney before taking any action or inaction. The answers provided are not intended to be specific legal advice and no attorney-client relationship is created between the SWLA Law Center and the viewers of KPLC-TV.

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