Articles Posted in Child Support

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court ordered child supportNon-custodial parents are required by law to provide some level of financial support (court ordered child support payments) to their children in any divorce decree. That being said, why are custodial parents owed nearly $20 billion in California alone? If you have hit a wall when it comes to collecting child support payments from your child’s parent, an experienced local attorney might be helpful.

Court Ordered Child Support Payments – Why?

Parents are obliged to provide for their children, whether or not they are, or have ever been, married. If an individual contests the claim of fatherhood, a paternity test can clear matters up rather quickly. At that point, some amount of child support is legally required for biological children. This court ordered child support is intended to assist in providing a home, food, clothing, and other basic needs. Even if earnings are minimal, the responsibility to contribute to that child’s well-being is indisputable, and court ordered child support payments will generally be enforced until that child is no longer a minor.  Children with special needs may need support beyond that time.

What to do if Court Ordered Child Support Payments are Not Made

In many circumstances, parents work out among themselves how court ordered child support payments will be made. In other situations, parents are forced to ask for wages to be garnished in order to collect court-ordered child support. These earnings assignments direct an employer to withhold support payments from regular paychecks. Within 10 days of receiving the garnishment order, employers must begin holding back funds. Theses monies will be sent to the California State Disbursement Unit (SDU), and will ultimately be sent to the custodial parent.

If the Non-paying Spouse is Not Regularly Employed

A number of things can be done to motivate parents who are not making court-ordered child support payments, including:

  • It can be reported to credit reporting agencies and impact the individual’s credit rating;
  • Passport applications can be denied to persons owing $2,500 or more in back child support;
  • Property liens may be filed against land or houses owned by the individual;
  • Drivers’ licenses and state-issued professional licenses, such as those for cosmetology, teaching, contracting, medicine and others,  may be withheld or revoked;
  • Vehicles, boats, cash, and property can be taken by the Franchise Tax Board if late payments exceed $100 and are more than two months past due;
  • Tax refunds can be intercepted.
  • Unemployment and disability benefits can be captured;

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child supportChild support. Raising children is expensive. When a couple chooses not to raise their child together, it does not absolve either parent of the financial responsibilities associated with raising that child. From a legal standpoint, some amount of child support is mandatory from both parents, and failing to provide that support could result in civil and/or criminal consequences. If you are concerned about child-support calculations, a good family law attorney may be helpful.

Obtaining Child Support

There are several circumstances wherein a court may order child support. They include:

  • Divorce;
  • Legal separation;
  • Paternity cases.

Income Considered in Child Support Determinations

Net disposable incomes of both parents are examined when making child support determinations.  The mathematical calculation used to determine the amount of support ordered by the court considers any and all income, including:

  • Salary, wages or earnings from self-employment;
  • Commission;
  • Tips;
  • Benefits from unemployment;
  • Workers’ compensation benefits;
  • Disability benefits;
  • Social security benefits;
  • Pension payouts;
  • Interest or dividend payments;
  • Lottery or other winnings.

Once the gross income is determined for each parent, the net disposable income is calculated by subtracting costs such as:

  • Taxes;
  • Mandatory union dues;
  • Health care premiums;
  • Required contributions to retirement accounts;
  • Costs associated with raising children from other relationships.

Other Considerations

The court will consider other factors, including childcare costs, school expenses, health care costs, and costs associated with visitation when parents live far apart. Some of these expenses are considered add-ons and may be divided equally between parents, or contributions may be based on each person’s disposable income. Additionally, children with special needs may incur further expenses to be considered by the court.

Once the final income calculations have been made, a child support payment is calculated based on the percentage of time the child spends with each parent.

Documentation Needed for Child Support

In order to make the most accurate calculations, parents will be asked to provide a number of documents, including:

  • Tax returns for the past year or two;
  • Paystubs from the past few months;
  • Insurance premium documentation;
  • Certification of mandatory retirement contributions;
  • Child support and spousal support information for other relationships;
  • Receipts for child care costs;
  • Other costs related to extraordinary circumstances.
What Happens to Parents Who do Not Pay Child Support?

Payment of child support is a serious business. When child support payments are not made, the consequences can be embarrassing and troublesome. Wages may be garnished, credit ratings may be impacted, and liens may be placed on property. There are additional consequences that many people do not know about: Passports may not be issued or renewed, and driver’s licenses could be revoked or suspended. The IRS could capture past due funds from tax refunds, and other government funds such as unemployment or workers’ compensation may be taken. Ultimately, criminal charges may be filed with associated fines and jail time. Continue reading →

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Child Support EnforcementChild Support Enforcement in California. When a judge officially finalizes your divorce—approving any settlement agreements, issuing orders for child support or spousal support, and legally dissolving your marriage—you may feel a sense of relief that your legal battles are over. Unfortunately, too many parents will find themselves back in court to address issues that arise regarding their agreements. One issue in particular that leads people back into the courtroom is child support enforcement.

Child support orders are based on specific formulas that take into consideration the respective incomes and expenses of both parents, as well as the basic needs of any children in question. For this reason, the majority of child support determinations in California are considered to be fair and to reflect the responsibilities of both parents to financially support their children. However, simply because a court issues an order—and even if that order is fair—does not mean that the parent ordered to pay child support is going to comply with the court order.

Because most parents rely on child support payments to cover the major expenses of raising one or more children, it can have a serious effect on your living standards if the other parent falls behind on payments. For this reason, many parents seek to legally enforce child support orders.

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My ex-spouse will not pay child support. Child support is not supposed to be a voluntary commitment for divorced parents. Courts often order one parent to make payments to the ex-spouse who is primarily raising their children, for the express purpose of supporting those children. However, sometimes the parent falls behind and does not meet their child support obligations. There are many reasons why this would happen, such as loss of employment, illness or injury, or simple laziness. But no matter the reason, the parent who should be on the receiving end of the child support will want to know how to get the money they are owed.

child

How to Get an Ex-Spouse to Pay Child Support

There are a variety of ways a parent can go about compelling their ex-spouse to pay their court-ordered child support. Among the possible courses of action are the following:

1.    Enter into a private agreement with your ex-spouse: If your ex-spouse genuinely cannot make the court-mandated child support payments, whether due to lack of income, illness, or injury, you can always work out a private agreement that reduces or suspends the payments while your ex tries to get back on their feet. Family courts will generally allow these side agreements and will refrain from enforcing their own orders while the private contract is in effect. However, you should be clear with both your ex and the court that, if the ex does not resume making payments when they are supposed to, you will go back to court to force them to do so. You will probably want to hire a family law attorney to draft an agreement of this sort.

2.    Go to mediation: If you want to address the child support issue in a formal setting without actually going to court, mediation might be a good route. Mediation is less adversarial and less expensive than family court, which is why more and more couples are using this option. Agreements reached in mediation can be more flexible and creative than court-ordered remedies. There are probably a number of licensed mediators in your area, and you can usually get a list from your local court.

3.    Take your ex-spouse to court: This is the most drastic, but probably also the most effective, of your options. You can hire a lawyer and return to family court for a contempt proceeding against your ex-spouse. If you can show that your ex is not meeting their court-ordered obligations, the court will try to find a way to compel them to pay the child support. One way the court may do this is through wage garnishment, where a percentage of the person’s wages are automatically diverted to the court and then to you. Many divorced parents hesitate to take their ex-spouses to court any more often than they have to, but if the well-being of your children is at stake, it may be the only viable alternative.

What to Do if Your Ex-Spouse Will Not Pay Child Support

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Can we all agree that fathers who do not have custody of their children have an obligation to support the kids through paying child support? The amount of child support each parent has to pay is generally set by a family court, with the judge factoring in each parent’s income, among other things. When fathers refuse to pay child support over a long period of time, they can be punished by being sent to jail. This is generally a last resort, after wage garnishment and other methods fail to exact the money the children need.

Children

But what can we make of a father who pays all of the child support he owes, but still winds up in jail? That is exactly what happened last November to a father in Houston, Texas. According to the father, the court increased his child support obligations without notifying his employer. As a result, his wage garnishments did not cover the full amount he owed in child support. His attorney claims that this was the result of an administrative error by the court, and meant that the deductions from the father’s paycheck were inconsistent and erratic.

Judge Sentenced Father to Jail for Contempt

When the mother’s attorney informed the father that he owed $3,000 in back child support, his lawyer initially advised him not to pay it, believing it was excessive. In addition, the mother claimed that the father was not complying with the court’s scheduled times to pick up their son for visitations. The father again stated that he knew nothing about this modification by the court. When he became aware of the discrepancy between the amount owed and the wage garnishments, the father went ahead and paid the nearly $3,000.

By the time the father appeared in court in November, his payments were caught up. But the mother’s attorney brought up the visitation times issue, and also demanded that the father pay $3,000 in attorney fees. The judge apparently agreed with the mother’s side of the story, and held the father in contempt. The father then walked out of the courtroom, further angering the judge. The judge ultimately sentenced the father to six months in jail.

Jail Sentence Is Consistent with New Texas Statute

Until last year, Texas law prevented a parent from being jailed for not paying child support if the parent was paid up at the time of the hearing. However, the Texas legislature recently repealed that provision, giving judges the discretion to punish repeat offenders. The repeal was intended to prevent delinquent parents from waiting until the day before a hearing to pay up on child support. The father in this case, who had been jailed in the past for failure to pay child support, was perceived by the judge to be a repeat offender, and therefore was put in jail in accordance with the law.

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As any divorced parent with children knows, calculating child support payments is a complicated and messy process. In some states, when a divorced spouse remarries, this changes the amount of child support that the newly married spouse either gives or receives. Some legal analysts do not believe that a stepparent should be responsible for child support payments which go directly to the spouse’s former spouse.

The California Statute 

To address this issue, in 1994 California passed Family Code Section 4057.5, which includes guidelines for determining child support payments. Before the passage of this statute, courts were allowed to take new spouse income into account when calculating child support payments owed to the former spouse. This practice effectively required new spouses to donate a percentage of their incomes to their spouse’s children and former spouse.

Little BoyThe 1994 statute banned judges from including new spouse income in child support calculations. Courts can only consider the income of the parent, except in extraordinary cases “”where excluding that income would lead to extreme and severe hardship to any child subject to the child support award.” This appears to be a fair way of avoiding all sorts of conflicts and inequities that could arise if new spouse income were still included in the calculations.

The Problem

However, there is at least one catch. Assume that after a divorce, one parent remarries and the other does not. So we have three individuals involved in a child support situation: the former spouse, the parent spouse, and the new spouse. The child support guidelines use after-tax income to determine payment amounts.

California is a community property state, meaning roughly that each spouse owns one half of the assets that both spouses have acquired since getting married. So the parent spouse must include one half of the community property income in their income tax return. Regardless of how they file, the new spouse’s income could push the parent spouse into a higher tax bracket than they otherwise would have been in. This in turn decreases their after-tax income.

According to a recent article in the Huffington Post, this system is fundamentally unfair to the former spouse. If the parent spouse ends up taking home less money simply because the new spouse makes more money, this can increase the amount of child support the former spouse owes to the parent spouse. In other words, by getting married to someone who makes a decent living, the parent spouse may be entitled to receive more child support from the former spouse.

Child Support Payments – What to Do

The system essentially punishes the former spouse and rewards the parent spouse for the marriage between the parent spouse and new spouse. One way to address the inequity created by the California child support statute would be to use before-tax income rather than after-tax income when calculating each parent’s obligations.

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If a separating couple can agree on a parenting plan, the court will usually issue an order reflecting those terms.

mother and son in the park.jpg
When a married couple with children decides to separate, one of the first steps they should take is to try and reach an agreement regarding how their children will be cared for after the separation occurs. In most cases, if the separating couple can agree on a parenting plan the court will issue a court order reflecting those terms.
The court will make a decision regarding custody and visitation when separating parents cannot reach an agreement.
When a separating couple cannot agree on a parenting plan, a judge will issue a decision regarding custody and visitation. This may take some time, because certain criteria will need to be met before a decision is issued. For example, separating parents are required to meet with a court appointed counselor. In some instances, the counselor will provide the judge with a recommendation regarding the appropriate child custody and visitation arrangement. In addition, the judge may order that some or all family members undergo psychological evaluations.

However, if there are immediate concerns that need to be addressed, the court will issue a temporary order. Circumstances that may require a temporary order include when one parent is moving to another jurisdiction and wants to take the children along or when parents cannot agree on what school their children should attend.
Before issuing a final custody and visitation determination, the judge will consider what arrangement is in the best interest of the child. This determination will be made based on the information gathered through evaluations and other information submitted to the court. In addition, if the children involved are, “of sufficient age and capacity to reason” the court may consider their wishes regarding custody and visitation.
Typically, custody will be awarded to one or both parents. However, if the court determines that awarding custody to either parent would be detrimental or harmful to the child, they may award custody to another adult. There are several types of custody that the court may consider:
Joint Legal Custody: This gives both parents the right and obligation to make significant decisions regarding their children’s health, welfare, and education.
Sole Legal Custody: This give one parent the right and obligation to make significant decisions regarding the children’s health, welfare, and education.
Joint Physical Custody: Children live with both parents, although not necessarily for equal amounts of time.
Sole Physical Custody: Children live with one parent and the other parent has visitation rights.

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storm - child support.jpgWhen a married couple with children separates or divorces, or where only one of an unmarried couple has custody, the non-custodial parent may be responsible for paying child support.

Child support is typically based upon the non-custodial parent’s income and the number of dependent children. California courts use child support guidelines – a matrix allowing the court to apply the parents’ total income and match it with the number of children. The matrix then provides the amount of money the family should provide for their children. Then the court can determine what percentage each parent contributes to the monthly income. Under California law, in unique circumstances, the court may deviate from the guidelines. However, such deviations are rare, and the court must then state the reasons for doing so. It is the legislative intent in California that a parent’s first and principal obligation is to support his or her minor children.

In the past, parents were left on their own to work through child support issues. However, state child support enforcement agencies are now taking a significant and aggressive position with regard to seeking payments from non-custodial parents. Even where the non-custodial parent has a reduced income, whether due to a job loss or salary reduction, they must still continue to pay child support. They may seek to have the child support obligation reduced, but they cannot decide on their own to simply reduce the amount they pay in child support.

Remedies that may be used to collect child support include:

Earnings Withholding Order for Support (Garnishment): An order issued on writ of execution, directing an obligor’s employer to withhold and pay a percentage of obligor’s earnings to the levying officer to satisfy a judgment for support.

Earnings Assignment Order: A court order directing an obligor’s employer to withhold and pay a percentage of obligor’s earnings to the obligee under a support order. Earnings assignment orders are automatic for support orders issued or modified on or after July 1, 1990, unless the assignment order is stayed or quashed.

Security Deposit Before Delinquency: A court order directing an obligor to establish a child support trust account in a state or federally chartered financial institution, into which obligor must deposit of up to one year’s child support. Amounts may be deducted from the account and paid to the obligee if the obligor is 10 or more days late in making support payments.

Security Deposit After Delinquency: A court order directing an obligor to deposit cash or other assets with a court-designated deposit-holder to secure future child support payments. The assets may be used or sold to pay child support arrearages if payments continue in arrears.

Government Benefits Intercept: Permits a support obligee in cases in which the support obligation is not being enforced by a local child support agency to intercept certain payments by state agencies and other public agencies to the obligor to enforce a support obligation owing to the obligee, including tax returns.

Monetary Penalty on Delinquent Support Payments: Allows support obligee to file and serve a notice of delinquency on the obligor whenever payments under a support order are more than 30 days in arrears. Any payments that remain unpaid for more than 30 days after such a notice has been filed incur a penalty of 6 percent per month, up to a maximum of 72 percent of the unpaid balance.

Loss of Driver License: In cases where the local child support agency is enforcing the support obligation, your driver license can be suspended, revoked, not issued, or not renewed if you are delinquent in child support payments.

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Prenuptial Agreement.jpgPrenuptial agreements, or premarital agreements as they may also be called, are contracts entered into before a marriage to establish the property rights of each spouse in the event of a divorce. A prenuptial agreement is most common where one or both spouses are wealthy, but they can also be used to protect a family business or to serve other important functions. For example, prenuptial agreements can protect a party from assuming the debts of the other party, determine how property will be passed upon death, clarify financial rights and responsibilities during a marriage or avoid long, costly disputes during divorce proceedings.
Without a prenuptial agreement, California law determines how property is divided during marriage and after a marriage ends. Generally, a spouse is entitled to share and receive ownership of property acquired during the marriage, receive some of your property upon death, share in any debts acquired during the marriage, and share in the responsibilities in managing property acquired during the marriage.
The decision to enter into a prenuptial agreement is one that every couple should make individually, as every situation is unique. Many couples fear that discussing a prenuptial agreement, or the issues that the prenuptial agreement will cover, may cause problems in the relationship. However, often the opposite is true. One of the main reasons couples divorce is finances, and a prenuptial agreement will allow a couple to discuss those issues prior to marrying.
There are some downsides to a prenuptial agreement. Depending on your relationship, it may take some of the romance and excitement out of the wedding and its preparation. Sometimes, the beginning of a marriage is not the appropriate time to discuss prenuptial agreement issues because you and your future spouse may not know enough about your life together to answer the questions required. If that is the case, you can always wait until you are married, when you know more about how you and your spouse intend to manage your household and its finances before discussing what is referred to as a postnuptial agreement.
Like many contracts, a prenuptial agreement must be in writing and signed by both parties. In addition, if a spouse is pressured into signing the agreement, or if they were not provided enough time to read and consider the agreement, a court may find the agreement invalid.
Prenuptial agreements cannot address everything; courts will invalidate certain portions if they do not comply with current California law. A prenuptial agreement may not contain any decisions regarding child support or child custody, because the court has final say in determining proper child support and the child’s best interests. In addition, a spouse cannot waive his or her right to alimony, which is one of the most frequent provisions struck down by courts. The prenuptial agreement cannot include personal preferences, such as who does each chore, where holidays are spent, or what school the children will attend, because a prenuptial agreement is primarily intended to address financial issues, and judges do not like to interfere in private domestic matters.
In any case where future spouses are considering a prenuptial agreement, each person should acquire their own legal counsel, to ensure that the agreement is fair to both parties and to reduce the chances of any impropriety.

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In parentage cases, also called paternity cases, the court issues orders that say who the child’s legal parents are. If you are targeted by a paternity suit, you may be wondering what your options are. If you are served with a Petition to Establish Parental Relationship by the other parent, you have 30 days to respond. It is very important to respond, because after 30 days, the court may grant the petition and legally find that you are the child’s father without a paternity test.

If paternity is established, you will expected to provide monetary child support until the child is emancipated. In California, emancipation occurs when the child is 18 and graduates high school, but could continue until the child is 19, if they are unmarried and attending high school full-time.

If parents are married when a child is born, there is usually no question of parentage. The law assumes that the husband is the father and the wife is the mother, so paternity is assumed. However, if there is a question as to paternity, the assumption can be overturned.

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