Question: My husband and I divorced last year after an acrimonious 12-year marriage. He is 60 and I am 36. This was his second marriage, my first. We have a five-year-old daughter who is in my custody, and my ex was ordered to pay child support based on his salary. I was given rehabilitative alimony and am now attending nursing school so I can go to work and begin earning a living. I have two years left until I finish. I was also awarded the house and a portion of his 401(k) that I put into an IRA.

But not six months after the judge’s order, my ex-husband retired, stopped paying support saying he had no income, and asked for a reduction of child support that is now in the court. He says that his only income comes from his IRA and that he should not pay child support because 1) he has no regular job and can’t find one, 2) I received part of his IRA as property settlement, and 3) the court is double counting. I don’t really have the money or time to continue to fight with him, but I am afraid to just let it go.

Answer: Each state has a child support statute passed by its legislature that sets the guidelines for child support and related expenses. Some support statutes base child support on gross income while others base it on a net income, with each state having its own variations. Either way, with a five-year old child, we don’t believe it would be a good idea to “let it go”, especially since your ex-husband is unlikely to find future employment.

As opposed to payments of alimony, in calculating a parent’s income for the purpose of establishing child support, legal decisions seem to agree that “income” includes funds received from an individual retirement account even though the distributions may not recur like a weekly or biweekly salary.

Because your husband has not reached 70 ½, he is not obligated to take minimum distributions from his IRA based on his life expectancy. Instead, because he is between 59 ½ and 70 ½, he can take all the distributions from his IRA that he wishes whenever he wishes, without penalty but subject to income taxes. However, the more he takes now, the less he will have later.

Distributions from IRAs are funds taken from an account consisting of deposits of pretax dollars and earnings on those deposits that have never been subject to income taxes. When withdrawals begin, as here, IRA disbursements are “income”. Therefore, unless your lawyer tells you that your state’s child support guidelines do not count retirement income or IRAs, it appears that the distributions your former husband takes from his retirement account are income when he takes them, and are subject to being considered as income for the purposes of setting child support. While there may be a double counting argument made by your ex, we believe you must contest your former husband’s positions.

SoloFact: A growing number of readers have written us complaining that the lawyers who handled their divorces did not explain the tax consequences of certain transactions to them with regard to alimony, the sale of the marital home, dependency exemptions, and how the cost basis of some assets – like stocks -- affect the net amount received at a later sale.

Those lawyers who don’t have sufficient independent knowledge of tax considerations may refer clients to a certified public accountant or tax attorney, whether the client needs the referral or not. While a referral to find out you don’t have a tax issue is certainly better than having a tax problem and not knowing about it until it is too late, we believe that lawyers who handle matrimonial cases have obligations to provide clients with at least basic taxation advice. Giving the wrong advice -- or giving no advice -- can lead to malpractice because of the potential detriment to the client. So when you hire a matrimonial lawyer, we suggest that you make sure he or she has at least a passing knowledge of tax issues.