Child Support Q & A

The following is a sample of various emails discussing custody and visitation issues.

 

Question: My husband does not wish to have his wages attached each month but promises to send me a cashier's check. He says attachment of his wages would be embarrassing. During our separation he has bounced checks, and failed to pay some bills on time. He bought himself a new car but sometimes refuses to give me money to care for our children which I have custody of at present except on every other weekend. I do not wish to trust to his whims to pay or not pay his childcare support and alimony regularly. Doesn't the law say that he has to have his wages attached?

Sincerely,

D. G.

 

Dear D.G.,

Wage assignment for child support is automatic; it is not discretionary. It must be ordered. Of course, it is up to you to have the Income Withholding For Support Order actually served on the employer for it to go into effect. Your letter is a perfect example why the Withholding Order is automatic. The Department of Child Support Services normally handles these matters. I’d advise you to seek their help on this. 

  

 

Dear Salomon,

This is a very frustrating and trying time for me. My husband uses mental torture tactics with me that cause a great deal of anxiety. He filed for divorce. We saw a paralegal but he it is almost impossible to get him to agree on fair support, time with children, etc. I try to deal with him on a rational fair basis but he is so domineering that he won't accept an equitable agreement. How many times should I sit down with him to come to an agreement without the help of a lawyer? Would you advise that I set a last time for meeting and if it doesn't work out to seek out a lawyer?

Waiting

 

Dear Waiting,

Sounds like you have already given him several last times. A divorce is not a simple matter, especially when there is a history of one party being domineering and the other submissive. In spite of the high cost of attorney services, you would be wise to seek professional help in resolving your divorce case.  

  

 

Dear Salomon

My wife and I are splitting up. I want to have equal custody. If we do this will I still have to pay support? We both are professionals, and make about the same. We do have property, but I think we can split the good and bad (debts) up equally. I guess the main question is why would I have to pay support if we have 50/50 custody?

Bill

 

Dear Bill,

You are correct that if your custody is split 50/50, and your incomes are equal, then there should be no support either way. The support schedule is based upon a comparison of incomes and custody share. The problem is that even slight differences in income will result in a support order. You also need to consider things like who gets the child dependency and head of household status.

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From: ~~~ Julia ~~~

I had worked our entire marriage, up until I got hurt at work, but I still am receiving a slight income through Vocational Rehab. I am now in the process of re-training and I am currently enrolled full time in college. It is going to take me another couple of years to accomplish my achievement of my degree and training.

He said that he will quit his job, for which he currently makes over $50,000 a year, so that no wages can be attached for child support or alimony. How am I to support myself or son, without completing my education? Will he have to help me out, and if so how does the courts determine how much and for how long?

The attitude you describe is very disturbing. If a person is intentionally depressing his income in order to avoid his responsibilities the court will look at his ability to earn rather than actual earnings.   As a practical matter, a person who is prepared to dispose of his family and become a fugitive or bum, is the most difficult to deal with. Many people make the threat but never really carry it out because at some point the person figures out that he has to live and support his family. 

Will we be able to keep my son in Catholic school? He says that we will have to pull him out, because he is not paying for it.

 

 

Dear Salomon,

My divorce was final 2 years ago. My X and I decided everything between us only using a paralegal for the proper paperwork. for three children. We didn't have a judge set the support amount. In the beginning of the divorce she had all three children and the amount of child support was $300.00 per month. After the divorce I took custody of our 11-year-old son and she has custody of our 9 and 7-year-old sons. After taking custody she only allowed the support to be lowered to $250.00 per month (keep in mind that during all of this we both are working in law enforcement at the same pay rate). Since now she has been remarried and together with her new husband is bringing in more than twice what I bring in, am I outside my legal realm lowering the child support to $200.00 per month? Or do you have access to a scale that courts go by regarding child support and wages? After she gave me custody of our oldest boy I reduced it to $250.00 per month and now after 1.5 years I think it should go to maximum $200.00 per month. Thank you very much for your input and advice.

SeaDon

 

Dear SeaDon,

Please understand that whatever court order is on file MUST be complied with. You say your divorce has been final for two years. If so, there is an outstanding child support order on file. If you chose to pay some other amount, the court ordered amount that is not paid becomes an arrearage that will be collectible against you for the rest of your life, and even beyond. This is so even if your ex-wife told you that it was okay, as she may later decide she needs the money after all. A child support obligation exists by court order that can be changed only by a new court order, and it may not be modified retroactively. If you and your ex-wife come to an agreement, the agreement must be filed with the court and a judge must approve it. Anything less will not be binding.

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Dear Salomon,

I've been divorced for about 2 years and have a 7-year-old son, and I am thinking of getting remarried. The question has come up if I where to lose my job after getting remarried is my new spouse liable for the child support? I have no intention on stopping any child support if I can help it, I love him very much. But just in case. I thought I heard that there was a new law to protect the spouse’s earnings or is it just a case of community property?

Thanks,

STK

 

Dear STK,

Your new spouse will not be liable for your child support obligation and the court may not set your support based on your new spouse’s income. After a layoff, your first stop should be to the courthouse to file for modification or temporary suspension of support until you get back to work, then to the unemployment office. A support modification cannot affect support owed prior to the date of the filing of the motion. Support arrearages that build up while you are unemployed do not go away, they remain due and owing. 

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Dear Salomon,

After 27 years of marriage, my wife and I are planning to get a no fault divorce.  Our daughter is a first year law student and our son is a senior in high school, intending to go to college.  We have approximately $300K equity in our home and we own three pieces of rental property.  

Although I would be happy to let my wife keep the major portion of our assets if she will assure continued financial support to our children's education, how can I insure this happening other than taking my half of everything and looking after this personally?

Deer

 

Dear Deer,

The court does not have jurisdiction to order support for children over the age of 18 years, unless they are full time high school students and have not yet reached the age of 19. Once they are adults, a parents’ obligation is exclusively between the parent and child. 

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Dear Salomon

My husband and I are getting a divorce after 6 years of marriage. We have 3 children and I am wondering how the State of California goes about determining the amount of child support that will be paid. I have not worked for the last 5 years because I stayed home with the children.  I would appreciate any information you can give me on this subject. Thank you

Lonestar

 

Dear Lonestar

Child support is determined by a computer program pursuant to the Uniform Child Support Guideline. The guideline computes support based upon the gross incomes of both parties and the percentage of custodial time that each party has the children.  There are many other factors that will affect the support computation such as union dues and health insurance premiums. Tax deductions for mortgage interest and property taxes and additional dependents are items that reduce your tax liability and thus the Guideline considers that the party has more money available to provide for the children. What the Guideline does not consider is the cost of the deduction that actually reduces the amount available to provide for the children.  

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Dear Atty:

After 25 years of marriage we have planned a clean, cut divorce. He keeps his government pension, and I keep mine. Our children are 22, and 16 years. I don't want to obligate him to pay child support for the 16 year old via a court deduction. I am filing the papers myself. Do I have to request child support on the form? If so, will child support be via a court deduction or payment? We are both responsible for the children without government forcing us to be. I don't want to lose any rights for my 16 yr old daughter, and will not. Most important is an amicable divorce with full protection for the children. BTW, where can one get the quickest divorce since Santo Domingo is out of the question in terms of legality in California? Do any other such places exist that California recognizes as legal?

Thank you very much.

Jen

 

Dear Jen,

The courts require that parents protect the rights of their children. Under California law, children have a right to be supported by both of their parents to the best of their ability. If a parent fails to protect their child’s right to support, the court can step in to mandate the proper child support order. That having been said, the court may approve a “Non-Guideline Child Support Order.” To qualify, you are required to state the correct child support order that is required under the Statewide Uniform Child Support Guideline. The child support recipient must then state why they are agreeing to less than the Guideline calls for and establish that the order is in the best interest of the child. 

 

I don’t want to read too much into your email message, but just wondering if you are feeling a lot of fear? Divorce is a difficult time and it is not uncommon for people to let their insecurities grow out of proportion. I know nothing about your particular case, but you, your husband and your 16 year old will all be better off if you reach an agreement that is fair and appropriate for all concerned. In general, children are better off when both of their parents are actively involved in their lives, providing care, love and financial support. 

 

I’d like to hear more about what is really on your mind that makes you reluctant to receive child support?  And, what's the rush, after 25 years of marriage and two children?  California divorce can be final after six months from the date that the other party receives the papers.

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Dear Salomon:

Thank you for answering me. I was pleasantly surprised you took the time. <big smile>

After 25 years <actually 26> it's time to move on. We've been separated for two years, and he has his little honey from day one of that time. So for myself it's an act of moving on with my life which is why I'd like a speedy divorce. We're truly amicable about it all for the good of our two children. As old as they are <22 & 16> divorce can still hurt. Regarding my daughter's child support I simply thought that his check would automatically be docked for child support and I didn't want to do that. But yes, if it means interfering with my daughter's right to child support then I would have the deduction. I just didn't want to have his check garnished. Voluntary support on his part would be nicer.

But when a man after 24 years of marriage falls for a woman with three little kidlets, then he can't all be there. So should he "forget" to support his own daughter I would be shocked, amazed and devastated. But I am under the impression that when I do these court papers they will automatically garnish his check for child support. And thanks a lot Salomon, you're truly a very helpful and informative person. I was thrilled you answered me. Thank you so much. :)

Jen,

 

Dear Jen

I hate to see you fretting so much over whether your husband has the child support automatically deducted from his paycheck. At this point, by law, it is automatic, not discretionary. Actually, it benefits both sides. When it is deducted from his pay, you don't have to nag him for the check, and it comes in on just as regular a basis as his paycheck. No hassles. From his stand point, he doesn't have to deal with making the payment, remembering, getting tempted with making you wait while he takes care of other priorities. It keeps him out of trouble. Also, now that it is automatic, employers everywhere are dealing with it, and it is an accepted part of any payroll department. Thanks for your inquiry.

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