Hard financial times are still troubling many parents in California who have been laid off from their jobs. The Associated Press reports in the Los Angeles Times that nationally, new jobless claims have recently risen higher than expected, although California has fortunately seen some decreases. For many of these parents who owe child support, the question is, when unemployment benefits end, will that parent be excused from paying the support until a new job is found? On the other hand, if the paying parent is lucky enough to be in a better financial position than when the child support was first ordered, will that parent automatically pay more now to support his or her child? The short answer in either case is no, and will continue to be no, unless and until one of the parent’s gets the child support order modified in family court.
First, it’s important to understand the basics of how child support is determined. Under California’s guidelines, child support is calculated using a complex formula that typically considers both parents’ incomes, the number of children, the child’s custody and visitation time with each parent, and other factors. When the parent paying the child support has more custody time with the child, the child support payments will be lower. This formula is used only to calculate the child’s daily living expenses, but the court has the ability to order additional support if needed to cover other expenses such as child care, special education, health insurance, and so on. To determine what the paying parent’s income is, the court will look at more than just wages, since the parent may receive moneys through other sources, including dividends from stocks and bonds, rents, insurance awards, worker’s compensation, unemployment benefits, disability or social security benefits, or income earned through self employment. Certain deductions from income can also be taken into account. If the paying parent is unemployed and has no other income, until that parent is able to modify the child support order, payments will still be due.
Even when modification is requested, the family court may decide that income should be “imputed” to the paying parent despite the fact that the paying parent doesn’t have any actual income. Imputed income means that the court will attribute income to the paying parent based on that parent’s earning capacity. In other words, how much can that parent be reasonably expected to earn? Using that number, the court will calculate how much child support the paying parent will be responsible for. Imputed income can be applied not only to unemployed parents, but also to underemployed parents who could potentially be earning more money. The parent seeking to have the court impute income on the other parent will have to give proof that he or she has the ability to work, and also that there’s opportunity to work. Whether there’s the opportunity to work in a given situation may be questionable in the current economy, but if proven, it will be up to the paying parent to challenge those findings. In these cases, the court will calculate child support either by declaring that the paying parent could at least earn minimum wage, or by calculating the support amount based on what income that parent could earn based on skills, history, or education. A family court judge can often impute income if a parent intentionally stops working or refuses a promotion to avoid paying the support, but even if the parent is not deliberately avoiding payment, the court can still impute income. This is because in promoting the child’s best interests, California family law gives the court discretion in deciding whether to calculate child support using either actual income or earning power. Similarly, the paying parent may have assets and investments that could be generating more income but are being wasted.
Missing child support payments can lead to collection actions, 10% interest on back payments, a potential contempt of court action that can carry jail time, and sometimes paying the other parent’s attorney’s fees. If for the time being you can’t afford to make the same child support payments, then you must ask the court to modify the payments (even if just temporarily) right away. If you delay, it will be too late to reduce the payments that were owed during any months that were missed before your modification request. For these reasons, no time should be wasted, and don’t rely on an informal arrangement between you and the other parent. Even if you are employed, you may find yourself unable to pay the full child support because of other hardships, such as a medical condition or other circumstances justifying a modification. California law is clear that both parents have a joint obligation to support their children, but at times a child support modification order is needed to reflect changed circumstances. Also note that you have the right to request income and expense declarations along with income tax returns every year after a divorce or paternity judgment. If you are the custodial parent who is owed child support payments in arrears, we’ll take immediate action to oppose an unjustified request for modification and collect the support owed. Remember that if you are owed child support, you should address the problem in court, and never violate other family law orders to gain compliance (such as by preventing visitation). We’ll gather the evidence that will be important to present or oppose a motion to modify a child support order. Whenever possible, we’ll help you reach a mutual agreement with the other parent so we can resolve the matter quickly. For immediate help with child support or any other family court order, meet with our skilled family law attorneys by contacting Minella Law Group at (619) 289-7948.
