Dear Rhode Island Divorce Coach,
Financially I'm doing pretty bad since I got laid off after 15 years. I've made good money but now unemployment is going to run out and I don't even know how I'm going to afford food or rent. She just want's child support again for my son again and she says it's my problem.
My ex and I have been divorced for almost 9 years. We had two kids together. My daughter is 19 years old and she's going to Rhode Island Community College and doing great. My son a great kid. He is somewhat learning disabled and I've been told he has the mental age of 13 even though he's almost 21 years old.
The Rhode Island family court terminated my child support for my daughter just shortly after she turned 18 and again for my son at age 19.
My ex-wife is taking me back into court to get child support for my son. She says she'll get it because he is learning disabled and is still living at home with her.
The court can't make me pay Rhode Island Child Support again, right? I mean, once the court tells me I don' t have to pay anymore I'm done, right?
J from Pawtucket.
The Rhode Island Divorce Coach's Answer:
J. I certainly can't give you an exact answer because lawyers don't make the decisions, it's the Judge's who do that. It is all based upon all the circumstances presented to the judge, what laws they use and how the position is argued on your behalf. I can never be sure if you've given me all the circumstances or how a judge might view your circumstances depending upon what things are presented in court, how they are presented, and who they are presented too.
I can tell you that effective July 9, 2011 the law regarding this subject changed. Specifically, RI General Laws 15-5-16.2(b) which provides the fundamental considerations the court must consider when determining the child support for children who have a severe physical or mental impairment and are still living with or under the care of a parent even beyond the child's emancipation date as set forth in the statute (deemed to be 19 years old at the latest) has been modified.
The Rhode Island Family court already had the power to issue child support orders for the severely physically or mentally disabled child beyond the age of 19 in its discretion provided the court found that continued child support was warranted under the circumstances as set forth in RI General Laws 15-5-16.2.
Now, in your case you have told me that before the law was changed your child support obligation for your son was terminated by the family court. You don't mention anything about whether the court determined if your son with physically or mentally impaired, or if your son was living with either you or your ex-wive at the time your child support obligation for him was terminated, so I will address the change in the law. You should then apply what the change in the law states to your situation since it would be improper for me to speculate on your situation without asking you further questions during a paid coaching session.
Rhode Island General Laws 15.5-16.2(b) which provides the factors a court must consider when deciding to expand child support beyond a child's 19th birthday. That law has been amended. Effective July 9, 2011, the following addition was inserted after the factors the court must consider in Rhode Island General Laws 15-5-16.2 in subsection (b).
Essentially this law seems to give the Rhode Island Family Court the power to award child support on a "going forward basis" even after a child's 19th birthday if the child has or had * a "severe physical or mental impairment" and a child support order for that child was terminated, suspended, or expired."If a child support order for a child with a severe physical or mental impairment has been terminated, suspended or expired, the court shall consider the factors in this paragraph and has the discretion to order child support for this child prospectively based upon established child support guidelines."
However, in a nut shell it now makes it possible for your ex-wife to at least petition the court for a continuation of child support if the court determines that your son's condition constitutes a severe physical or mental impairment.
Based upon the change to this law, it IS possible that your ex-wife could take you back to court and she (or rather the child technically) be awarded child support on a going forward basis even if your child support was previously terminated. That is, of course, provided the court finds that your son's condition meets all the criteria required by that law.
You will want to look at cases determining what constitutes a severe physical or mental impairment under other Rhode Island cases.
I'm sorry that the answer isn't as simple as you might like it. However, the law can get very complex and often rests on different interpretations and arguments that can be made. That's why it is always important, in the very least, to seek the advice of an experienced divorce and family law practitioner on matters such as these.
[*Important Note on Bolded Text: It is unclear from this addition in Rhode Island General Laws 15-5-16.2(b) whether the child had to have the severe physical or mental impairment (a) At the time the previous Rhode Island child support order was issued, (b) At the time the previous Rhode Island child support order was terminated, or (c) whether the child acquired the severe physical or mental impairment at any time after the date the child support order that was terminated was made by the court. ]
I hope you found this of help to you. Should you need any further assistance, please contact me for an affordable legal advice or Rhode Island Family Law Coaching session from an experienced Rhode Island Divorce and Family Law and Divorce Lawyer and Coach.
My best of luck to you J.
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