If you’re like many people who are splitting up in Stockton, you’re wondering, Is child support mandatory in divorce?
The main thing to understand is that the state of California says that both parents are responsible to contributing to their kids’ support and well-being. When it comes to child support, here’s how it works.
Is Child Support Mandatory in Divorce?
Child support is mandatory in divorce. The court can order one or both parents to pay child support, even if the divorcing couple doesn’t request it.
The law says, “Both parents are mutually responsible for the support of their children … each parent should pay for the support of the children according to his or her ability.”
The courts presume that the parent who has primary physical responsibility for the kids is already contributing a significant part of his or her resources to support them. That means if your children live with you most of the time and only visit with the other parent, the court counts the fact that you’re providing food, shelter and clothing for the kids toward your support obligation – and the other parent is typically the one who has to make child support payments.
How Does the Court Determine Mandatory Child Support?
The courts usually use California’s child support guidelines when they’re determining how much child support one parent will pay. The child support guidelines account for each parent’s net disposable income. In order to reach that figure, the court figures out each parent’s gross annual income, subtract deductions required by law, and then divide that by 12 (the months of the year) to find the monthly amount.
A parent’s gross income includes income from all sources, including:
Salary or wages, bonuses, commissions, rental income, pensions, royalties and other benefits
Income from the ownership of a business
Employment or self-employment benefits in some cases
The deductions the court will take to figure out net income are:
Mandatory union dues
State tax obligations
Federal tax obligations
Job-related expenses that are necessary to job performance
Health insurance premiums
Hardships like basic living expenses for children from previous relationships or extraordinary health expenses
The courts determine mandatory child support based on how much time each parent spends with the children and which parent the kids live with.
Do I Have to Pay Child Support if I Have No Income?
The courts can still order you to pay child support and make it mandatory, even if you have no income. Sometimes one parent refuses to work in order to avoid paying child support – but in cases like those, the courts will look at that parent’s ability to earn and base child support calculations on how much that person could earn if he or she was employed. However, in order for the courts to do this – it’s called imputing income – the other parent will need to provide proof that there are jobs that the non-paying parent is qualified to perform.
Can My Spouse and I Agree to Our Own Child Support Arrangements?
You and your spouse can agree to your own child support arrangements and submit your plan to the court. The court does not have to approve it. However, if you do make your own child support agreement, it must state that:
You both know your rights
Neither of you were forced to agree to this arrangement
The agreement is in your kids’ best interests
The agreement will meet your kids’ needs
Neither of you are receiving public assistance and neither of you have applied for public assistance
How Long Does Mandatory Child Support Last in a Divorce?
Typically, parents are required to pay child support until the child reaches the age of 18. However, there are some exceptions. For example, if your child becomes emancipated before the age of 18, you can stop paying. (Your child will be considered emancipated if he or she gets married, gets a declaration of emancipation from a court, or goes on active duty in the military.)
You still have to pay if your child is 18 but is still in high school and is not self-supporting. That obligation doesn’t end until your child turns 19 or completes 12th grade – whichever comes first.
If your child is unable to earn a living and doesn’t have sufficient means to live, both of you are required to support him or her to the extent that you’re able.
You can agree to a child support order that extends longer if you want to.
Do You Need to Talk to a Lawyer About Child Support Being Mandatory in a Divorce?
If you’re still not sure whether child support is mandatory in divorce because of your situation, we may be able to help you.
Call us at 209-546-6870 to schedule a consultation with a divorce attorney in Stockton right now. We’ll answer your questions about child custody and child support, property division and more.
Child support laws in California help ensure that both parents are financially responsible for their children. The courts use a special formula to determine how much one parent will pay the other parent, and once a judge orders child support, it remains the same unless you go back to court to change it (or the child reaches a certain age).
Child Support Laws in California: What You Need to Know
California Family Code 4053 provides a framework for the way child support laws work here, and it explains that children should enjoy the same standards of living that their parents enjoy. It also shows that in California, the parent who has primary parenting time – the one who has the child more often than the other parent – is assumed to contribute more resources to the child. (But that’s not always the case, and if that’s your situation, make sure you let your Stockton divorce lawyer know.)
The Family Court doesn’t always have to follow California’s child support guidelines. In some situations, the guidelines just aren’t right – but if you feel that the guidelines are a bad fit for your family, your attorney will have to show the court that using them to determine child support would be “unjust or inappropriate.”
What if You Agree to More (or Less) Than What the Child Support Guidelines Say You Should Pay?
Parents are free to reach their own agreements on child support. If you and your ex decide that one of you should pay more or less than what the guidelines would require – and you’re both in agreement, and nobody’s being coerced – the courts will consider your request. However, if the amount is less than what the guidelines require, you can be sure that the court will look at your request very carefully.
How Child Support Laws in California Work
When you or your ex will have to pay child support, the court will create an order that outlines how much money is supposed to change hands. These ongoing monthly payments for the care and support of your children last until each child turns 18 or 19. If you have three children, and one turns 18 and becomes ineligible for child support payments, the support for that child stops. It continues for the other two until each of them comes of age.
When Would You Pay Child Support Until Your Child Turns 19?
You may have to pay (or you may receive) child support until your child turns 19. That happens when your child is unmarried and attending high school full-time. If your child turns 19 and is already enrolled in high school full-time, support payments don’t typically end until he or she graduates.
There are exceptions to every rule, though, which means that you’ll have to talk to your attorney about the specifics.
What if You Don’t Follow Child Support Laws in California?
When a judge orders you to pay child support, you’re legally required to do so. If you’re able to pay and you’re just not doing it, you can be found in contempt of court – and that can actually land you behind bars.
If you cannot afford to pay your child support, you’ll need to let the court know – either through your attorney or on your own. You may be able to get your support amount lowered, but only if there has been a significant change in your circumstances since the last time the judge ordered you to pay.
There can be serious consequences for failing to pay child support, including the court:
Freezing your assets
Suspending your driver’s license
Suspending your professional license
Reporting to credit bureaus
Garnishing your wages, tax refund, workers compensation benefits or disability benefits
Child Support and Your Passport
If you’re traveling outside the country but you owe more than $2,500 in past-due child support, you will be denied issuance or renewal of a passport.
If you’re like most people who are considering a marital split, you need to know how to prepare for divorce – from finances to breaking the news to your kids. And there’s no question about it: preparing for divorce takes time and resources.
Here’s what you need to know.
How to Prepare for Divorce
Other than the emotional side of divorce, which also requires preparation, you have to think about things like money, your kids and so much more – all while keeping up with your daily obligations. Here are seven steps you need to take to prepare for divorce:
Deal with your emotions
Gather documentation
Consider your job prospects
Make a financial plan
Set goals
Talk to a lawyer about your options
Help your children
1. Deal With Your Emotions
Divorce is a highly emotional process, even if you’ve known it was coming for a long time. Unfortunately, divorce is also a process that requires you to make tough decisions – and big emotions don’t always help you make good choices. For many people, that means talking to a therapist or counselor to help sort things out.
When you file for divorce, you’ll need to have several documents that back up your financial claims – like bank statements, income tax returns, pay stubs and credit card statements. You’ll also need birth certificates, your kids’ Social Security numbers and other documents. If you pull all this information together before you talk to an attorney, you’ll be able to find it quickly when he or she needs it.
3. Consider Your Job Prospects
If you haven’t worked in a while, it may be time to start looking for a job. You may also decide it’s time to invest in your education so you can get an even better job once you’re on your own. Talk to your lawyer about what you should do if you’ve been the supported spouse; you might be entitled to spousal support that helps you get on your feet.
You can’t count on spousal support or child support until you have a signed court order in your hand. You need to develop a financial plan – including a budget – that you can work with during and after your divorce. (Again, if you’re not working, talk to your attorney about what you can do.)
It’s also imperative that you understand your family’s finances. You need to know what assets you and your spouse share, how much you owe, and how much money comes in each month.
Be realistic when you’re planning your divorce. You need to know what you want out of your divorce – whether it’s a certain amount of time with your children or it has to do with the assets you’ve accumulated during your marriage – and you need to be clear about your goals with your attorney. You can’t expect the judge to order your spouse to award you millions in spousal support payments each month, give you the house and leave your spouse destitute; that’s not realistic, and you’ll only be disappointed (and dissatisfied with a reasonable outcome).
6. Talk to a Lawyer About Your Options
When you’re ready, it’s time to talk to an attorney. Your attorney can answer all your questions and help you through the process, explaining each step.
After you break the news to your kids – which experts suggest doing together, as a couple – it’s your job to help them cope. There are several ways you can do that (like through divorce books for kids, spending extra time together and more), but through it all, the most important thing to do is reassure your kids that you love them and that you’ll always be their parent.
There are myriad reasons you shouldn’t get into another relationship before the ink is dry on your divorce decree (and definitely not before it’s even been signed). One of the most important is your own well-being; you need time to readjust to your new normal. Besides that, if your soon-to-be ex finds out that you’re in a new relationship, your chances of negotiating your own settlement can drop drastically.
Divorce isn’t a contest. You’re both just trying to make it out with a reasonable outcome, so you both have to act that way. If you try to use the legal system to “win” and to make your spouse “lose,” you’re not going to get very far. Judges won’t sign off on things that aren’t fair to both parties.
Studies show that involving your children in your divorce can be tremendously harmful to their well-being. Instead of using your kids as messengers or worse, using them to hurt your ex, it’s best for them if you reassure them that you’ll both always love them – and that you know it’s important they have relationships with both of you. That way, your kids can bounce back once they adjust to their new circumstances.
Everybody needs support, especially during a tough time like divorce. You, your children and your ex could likely all benefit from talking to a trained professional who can teach you new coping strategies. Your therapist can also give you advice, listen to you vent and help you start planning for the future.
During your divorce, it’s very important that you’re completely honest about your assets – and that you don’t get rid of anything. The courts don’t look to favorably on those who try to cheat the system, and hiding your assets (or disposing of them) can really backfire on you. If you’re wondering if it’s okay to hide money from your spouse, the answer is definitely no.
Unfortunately, sometimes it’s necessary for someone to secretly prepare for divorce. Whether you’re a victim of domestic violence or you’re concerned that your spouse will do something rash (physically or otherwise), it may be in your best interest to keep quiet about your plans until you’re ready to take action.
You can secretly prepare for divorce in many of the same ways that are listed here – you’ll want to prepare yourself emotionally, gather documents, make a financial plan and talk to an attorney about your options. If your safety is an issue, let your attorney know – she’ll be able to provide you with resources you can use to stay safe (and keep your children safe) while you start the process.
Do You Need to Talk to a Lawyer About How to Prepare for Divorce?
If you’re thinking about divorce, it’s time to prepare. Call us at 209-910-9865 to schedule your consultation with a divorce lawyer – we’ll answer all your questions and start building a strategy that gets you and your kids the best possible outcome.
There are many reasons people come to our offices and say, “I think I want a divorce.” Some people are dealing with a cheating spouse. Others are sick of fighting and conflict, and still others have simply grown apart.
If you think you want a divorce, that may mean your marriage is beyond repair – and if that’s the case, you need to talk to a Stockton divorce attorney who can help. Your spouse may be feeling the same way, and it might be just a matter of time before your spouse files for divorce anyway.
I Think I Want a Divorce: How to Explore Your Options
For many people who think they want a divorce, it makes sense to talk to a counselor or therapist. Talking to a professional can help you sort out your feelings – and, if necessary, give you the push you need to take the first step if divorce is the right choice for you.
Your therapist might ask you if you’ve made every effort you can to save your marriage. He or she can also help you evaluate how you’ve been processing the emotions that go hand-in-hand with ending a marriage.
You can also schedule a consultation with a divorce lawyer. Your attorney will fill you in on the likely outcomes of your case, answer your questions, and let you know how the entire process works.
If you’re seriously considering divorce, you’ll have to evaluate your options and think about the consequences you’re likely to face. Going through with it means you’ll have to negotiate with your spouse on matters like:
Naturally, if your spouse won’t agree with you, your lawyer will fight hard to get you – and your kids – what you deserve. It’s just that negotiation is usually the best option.
When you’re simply considering divorce, it’s easy to miss signals that nearly always lead to divorce. Take a look at your marriage – and if any of these five signals are present, it may be time to talk to a lawyer about filing:
Emotional disengagement. You have turned off your emotions toward your spouse – or your spouse has turned off his or her emotions toward you. You just don’t love each other anymore.
Lack of sex. In a marital relationship, sex and physical connection is what sets it apart – otherwise, you have a roommate you share responsibilities with.
There’s no conflict resolution. You go to bed mad, wake up mad and stay mad when you butt heads. Eventually, you simply won’t care about smoothing over conflict (if you’re not there already).
You focus more on things outside your marriage. An empty marriage is boring, so you pour yourself into other aspects of your life.
You’re preparing to be single. If you think about the future and your spouse isn’t part of it, or if you’re more interested in getting in shape to improve future dating prospects than you are to impress your spouse, it might be time to talk to a lawyer.
Do You Need to Talk to a Lawyer Because You Think You Want a Divorce?
If you’re contemplating divorce, you owe it to yourself to find out what kinds of options you have.
California child support laws are pretty straightforward – they require both parents to contribute financially to their children’s upbringing.
But what is child support for, and how does it work under the law? Will you be required to pay it, or will you receive it? Your Stockton divorce lawyer can explain all of this in more detail, but in the meantime, this guide walks you through what you need to know about California child support laws.
California Child Support Laws: What You Need to Know
California child support laws say that each parent is equally responsible for providing for his or her child’s financial needs. That means each parent contributes in some way – and when parents separate, they must ask the court to create an order for child support. When a child was born to a couple during the couple’s marriage, parentage isn’t usually an issue – the courts assume that each is the parent of the child. However, in some cases, the court must also open a parentage case to determine who the child’s legal parent is.
A Word on Parentage
When a child is born to an unmarried couple, the court issues an order determining the child’s legal parents. The court has to do this before making any child support determinations – it’s required under California child support laws.
How California Child Support Laws Require Courts to Calculate Dollar Amounts
California has a child support guideline that determines how much money should change hands between parents. That doesn’t mean that parents can’t agree on a different amount – if you and your soon-to-be ex-spouse want to, you can figure out how much money is necessary to take care of the kids and agree on a dollar figure. (Sometimes parties in a divorce agree on a higher child support figure as part of divorce negotiations.) As long as it’s fair to your children and the paying parent can afford it, the judge will most likely sign off on it.
If you and your ex cannot agree, California child support laws tell the court look at:
Childcare expenses
Health insurance costs
How many kids the parents share
How much money each parent earns (or can earn)
How much other income each parent gets
How much time each parent spends with the kids
Mandatory union dues or retirement contributions one or both parents make
The tax implication for each parent
Uninsured healthcare costs
Whether the parents are each supporting kids from other relationships
Other factors that the courts deem necessary
Once the court has figured out a dollar amount for child support, the judge makes adjustments based on time-share. Time-share is how much time each parent spends with the kids. In most cases, child support payments decrease as time-share increases – which means if you have your children most of the time, you’re responsible for making less of the payment and the other parent is responsible for making more.
If you are the primary custodian (the kids are with you more time than they’re with their other parent), you’re not likely to have to cut a check. The way it works is that only one parent actually pays; the other’s contribution is assumed. If you have the kids the majority of the time, it only makes sense that money is coming out of your pocket to pay for their needs.
Do You Need to Talk to an Attorney About California Child Support Laws?
If you need to talk to a lawyer about California child support laws and how they’ll affect your case, please call us at (209) 989-4425 or get in touch with us online to talk to a lawyer right now. We’ll help you with every aspect of your divorce, from child custody and child support to alimony and property division.
As mentioned in other articles on our site, dissolution is generally a hotly-contested issue, even more so when there are children born from the marriage. A major issue that regularly comes up, is who is going to pay for that child’s college education; this issue is made exponentially more ripe for conflict because many dissolution orders don’t address the issue of college tuition since most children are over the age of 18 when they go to college (child support obligations end when a child reaches the age of majority, which is 18).
This article will: (1) briefly address the importance of a college education, (2) briefly discuss how Free Application for Federal Student Aid (“FAFSA”) works, and (3) briefly discuss the impact child support has on eligibility for student aid.
The Importance of a College Education
Since the Great Recession of 2008, the rates of college attendance have skyrocketed. Simultaneously, and directly correlated to the sharp increase in college attendance, the tuition for attending post-secondary educational institutes has skyrocketed as well. Ultimately, however, in an economy where more people are obtaining college educations it is critical that a child obtain a college diploma if they want to remain competitive in the job market; a common lamentation by those graduating from college after 2012. It cannot be denied that receiving a college education will provide an individual with greater financial stability (which many argue is good for the economy as a whole), but a college education has also been shown to increase an individual’s overall happiness and health. Further, graduating from college provides tangible benefits to the individual, even where their area of study is irrelevant or where a degree is not a prerequisite for the job itself. In a recent study, a full-time employee who has received their bachelor’s degree were found to receive approximately 83% more income from employment that their counterparts with a high-school diploma. Finally, individuals with a college degree are notably less likely to be incapable of finding employment. With all those benefits in mind, it stands to reason that a college education is of the utmost importance, but who is going to pay for this critical aspect of a child’s life?
Attendance and Cost on the Rise
In 2012, one-third of individuals ranging from the ages of 25 to 29 earned a bachelor’s degree or higher; a record high. Roughly 90% of individuals ranging from the ages of 25 to 29 have received a high-school diploma, and nearly 63% have completed a portion of their college education. As noted above, the number of people who received bachelor’s degrees or higher in 2012 was an all-time high in this country and is mind-boggling when contrasted to a period of time where college was only available to the wealthy elites of this nation. Despite these massive gains, not every college-aged individual has the ability to attend.
History of Parental Support
The notion that parent’s have a legal obligation to support their minor children is well established in American jurisprudence. Specifically, parents are expected to provide their children with necessities including food, shelter, clothing, and medical attention. Up until 1971, this obligation lasted until the child was 21 years old (college age) and attained the age of majority. However, in 1971, the United States Congress ratified the 26th Amendment, which reduced the voting age from 21 to 18. Consequently, all states passed laws that reflected this new age of majority, including laws pertaining to child support. The net result was that child support obligations no longer extended to a child’s college years, a time where many children need support more than ever.
The Cost of a College Education is on the Rise
At any social gathering where there are multiple parents of 18-24-year-old present, it is inevitable that conversations about how expensive a college education will come up. In fact, between 2013 and 2014, the average tuition fee plus room and board at a private non-profit 4-year educational institute is approximately $40,917; this number is reduced by roughly 25% for public non-profit educational institutes – $31,701. (Tuition and Fee and Room and Board Charges Over Time, 2003-04 through 2013-14, COLLEGEBOARD, http://trends.collegeboard.org/college-pricing/figures-tables/tuition-and-fee-and-room-and-board-charges-over-time-2003-04-through-2013-14 (last visited Nov. 1, 2014).).
In recent years, this rampant increase in college tuition has slowed down; however, between 2003 and 2013 this country saw college tuition increase by approximately 80%. While married couples have the ability to choose to provide financial support to their children as a unit, divorced parents certainly have a more difficult time making unified decisions that impact their finances significantly.
How FAFSA Works
Financial aid for college affects married couples and divorced couples alike. When children receive little-to-no support from their parents in paying for college, they are forced to seek other options that will assist them in subsidizing the college education, this usually takes the form of financial aid. A popular form of financial assistance for the educational expenses associated with post-secondary education is the Free Application for Federal Student Aid (“FAFSA”).
Students are classified as either independent or dependent for purposes of determining FAFSA eligibility. When a student is deemed to be a dependent, their FAFSA eligibility is dependent on their parents’ incomes (thus the dependent of a high-income family is unlikely to be FAFSA eligible). Conversely, where a student is deemed an independent, or a dependent of a low-income family, their FAFSA eligibility will likely be approved.
For children of divorced parents, a dependent child is required to disclose their custodial parent’s income. Naturally, in most cases, a single-income earner will make less than a dual-income family. As such, students who are deemed of divorced parents are far more likely to be deemed FAFSA eligible than students who deemed dependents of married couples.
Child Support and FAFSA Eligibility
As noted above, students applying for FAFSA are categorized as either dependents of their parents, or independent of their parents for purposes of determining eligibility. If a student is deemed a dependent of their parents, their parents are required to disclose their relative incomes in order to their child’s FAFSA eligibility to be determined. In the case of a student who has divorced parents, their custodial parent’s income is the only income used in determining their FAFSA eligibility; naturally, the sole custodian of the child’s income is likely lower than it would be if they have a second income earner reporting their assets.
As a rule of thumb, the parent which the child lived with the most in the preceding year is the parent who provides their financial information on the FAFSA application. In the even that the student has spent an equal amount of time with both parents in the preceding year, then the parent who provides the most support is the parent whose income is utilized in the FAFSA application. It is important that this determination is based on who provides more actual support, as opposed to which parent claims the student as an exemption on their federal tax returns.
In 2009, the US Department of Education stated that “child support” for purpose of a FAFSA application only includes the amounts paid in direct compliance with a valid separation agreement, legal child support agreement, or a divorce decree. This means that voluntary payments from a non-custodial parent to their child’s education are treated as the child’s untaxed income. Unfortunately, this shifts a parent’s gift from a boon to harm; it acts as though the child is making more money than they actually have – making the application reflect a higher “expected family contribution” (“EFC”) than is supported by reality.
As a natural corollary, the parent who is providing their child with voluntary payments for education (above what they may have been legally obligated to provide) is unable to reduce their own FAFSA income by the amount provided, resulting in a higher EFC for that parent. The practical effect of voluntary payments to the child is two-fold then, and ultimately creates a higher EFC than is correct.
Ultimately, it is in everyone’s best interest for the parent making the voluntary payments to their child’s educational fund to request that the Court modify the standing support agreement to include their voluntary payments.
At Maple’s Family Law, we understand that it is every parent’s dream to send their child to college; it is a path to a better life which is the ultimate goal of all parents. If you or a loved one are seeking advice on how to modify a support order to assist your child in becoming FAFSA eligible, contact us today.
If you’re like many Californians, you’ve heard of a legal separation – but what is it, and could it be the right choice for you?
What is Legal Separation in California?
Legal separation is more than just physical separation. That means just because you and your spouse have chosen to live apart, you’re not necessarily “legally separated.” Some people remain married but live apart for years, never actually filing for divorce.
In order to be legally separated, you must have an actual court order. Many legal separation judgments include information on the division of assets and debts, child custody, child support and spousal support.
Some people choose to remain married but live apart through a legal separation. There are a variety of reasons couples choose this path rather than divorce – some are personal, some are religious, and some are financial.
Is a Legal Separation the Same Thing As a Divorce?
A legal separation can accomplish many of the same things a divorce can. However, there’s a very important difference: You’re still technically married, so neither of you can marry someone else if you’re legally separated. The only way you can marry someone else is if you get a divorce.
You can get a divorce at any time during your legal separation.
Can Legal Separation Be One-Sided?
Unlike divorce, legal separation – generally speaking, anyway – must be agreed upon by both parties. The only time that the court can grant a legal separation with only one party’s consent is if the other party doesn’t show up or respond to the petition.
Child Custody in a Legal Separation
It’s always in your best interest to reach an agreement on child custody with your spouse, whether you’re legally separating from your spouse or you’re getting a divorce. You and your spouse know what’s best for your children, and when you can reach an agreement together, your whole family will be better off.
Your legal separation judgement can include very detailed information on child custody, including where your children will live, what schools they’ll attend, and who’s in charge of decisions regarding their education, religious upbringing, and more.
Child Support in a Legal Separation
When you have children, you’re both responsible for contributing financially to their lives. Typically, just like in a divorce, the parent who doesn’t primarily live with the children is responsible for paying child support.
While you and your spouse are free to reach your own child support agreement, the judge won’t sign off on it unless he or she finds that it’s fair to everyone involved – including your children. California has standard guidelines that the courts use to calculate child support, so any support amount you and your spouse agree on must fit within them.
Spousal Support in a Legal Separation
Spousal support isn’t an automatic thing, whether you’re divorcing or legally separating. However, either party can ask for it. You can address whether or not support is appropriate, how much should change hands, and how long spousal support should be exchanged in your legal separation documents.
Property Division in Legal Separation
Your property includes everything you and your spouse own – including retirement accounts, savings and checking accounts, and real property, as well as furniture, appliances and other belongings. You can address all of this in your separation agreement.
Debt Allocation in a Legal Separation
Everything you owe – from a mortgage to credit card payments – needs to be divided fairly when you legally separate. Personal loans, tax debts and other obligations count, too.
The Bottom Line on Legal Separation
Ultimately, it’s up to you whether to pursue a legal separation or a divorce. Either way, we can support you and create a strategy that gets you and your children the best possible outcome.
In the state of California, fathers have rights too – and that’s true across every aspect of divorce, including child support. Like mothers, dads are considered incredibly important parts of kids’ lives in the Stockton family court system. Their rights and responsibilities, just like those expected of mothers, extend providing their kids with emotional and financial support.
Fathers’ Rights and Child Support in California
Caring for children is as much a father’s responsibility as it is a mother’s under California law, and that includes the payment or receipt of child support. Here’s the bottom line:
Either parent can request child support from the other party in a divorce
The court decides who will pay child support
The court determines a fair amount of child support, regardless of the paying parent’s gender
Requesting Child Support From Your Ex-Spouse
As a father, you have the right to request that your ex-spouse pay child support if you are sharing custody of the children or if you have sole custody. A parent receiving child support is permitted to use it for:
Educational expenses
Extracurricular activities
Housing expenses
Medical expenses
School expenses
Transportation expenses
Anything else the receiving parent needs to provide for the children, including utility bills and other necessities
Do Fathers Have the Right to Avoid Paying Too Much Child Support?
In California, both parents are treated equally, regardless of gender. That means fathers (as well as mothers) have the right to avoid paying too much child support. We don’t mean too much as if there’s ever too high an expense to care for your children – we mean so much child support that it puts you in the poorhouse.
California’s child support formula, which judges can deviate from when necessary, is what courts use to determine how much child support one parent will pay the other to help out with the couple’s children. The formula relies on net income and how much time each parent spends with the children, but other factors do come into play, such as:
Child care expenses
Medical insurance premiums
Tax implications for both parents
Other expenses that affect each party’s situation
Because the formula is largely dependent on each parent’s net income, it prevents calculations that exceed what’s reasonable in most cases. However, if the formula turns out to take more money than is economically feasible for one parent to pay, the judge can use his or her discretion to make the appropriate adjustments.
Do You Need to Talk to a Lawyer About Fathers’ Rights and Child Support?
We can answer your questions about fathers’ rights and child support, and we can protect those rights during your divorce.
Call us at (209) 546-6246 or contact us online to schedule an appointment with an attorney. We may be able to help you.
If you’re a divorcing parent in Stockton or elsewhere in San Joaquin County, you probably have questions about child support laws in California – and that’s perfectly normal. Child support is important to get right the first time, though – because although you can modify child support in California, it requires you to go back to court.
Modify Child Support? Here’s Why Some People Need To
In the vast majority of child support cases, parents need to modify terms because of a significant change in circumstances. However, sometimes parents modify child support because the judge in their case ordered an amount that fell below the guideline amount.
Those are the only two instances in which you can go to court to modify child support.
So what’s a significant change in circumstances? When one (or both) parents:
Has had a change in income
Has lost a job
Has been incarcerated (although there are special circumstances that apply in this case)
Had another child from another relationship
Other reasons parents may seek to modify child support include a big change in the parenting time agreement or in the child’s needs as far as child care, healthcare or education. Additionally, if there are changes in any of the factors the courts used to initially calculate the amount of child support, you can ask the court to modify the order.
How to Modify Child Support
If you and your ex-spouse can agree on the modification amount, then you can write it up as a “stipulation” and give it to the judge. If the judge agrees with what you’ve come up with, he or she will sign it and it’ll become a new order.
However, if you and your ex-spouse cannot agree, you’ll have to petition the court to ask for the change. If that happens, the court will evaluate your request and you’ll have to show that there’s a good reason you want to modify your child support order.
Working With Your Lawyer to Modify Child Support
For most people, the best idea is to work with a Stockton child support lawyer to make modifications to an existing child support agreement. Your lawyer will need to know what kind of significant change there’s been since the original order was entered, so if you or your ex-spouse has lost a job, had a large change in income, or has had a child from another relationship, explain the situation to your attorney. She’ll file the appropriate paperwork with the court, and she’ll ask you for documentation that backs up your claim – the judge in your case may need to see it.
Do You Need to Talk to a Stockton Divorce Attorney?
If you need to talk to a lawyer about your divorce, child support or child custody, we may be able to help you.
Call us at 209-910-9865 or get in touch with a Stockton divorce attorney online to schedule a consultation today. We’ll discuss your case, find out about your circumstances and start formulating a plan that gets you and your children the best possible outcome.
It is an unfortunate reality that dissolutions involving children from the marriage can be the messiest variation of the dissolution process; even messier than a high-conflict dissolution involving substantial assets. It is important to bear in mind that the custody determination is motivated by the child’s best interests. As such, it is your best interest to not only affirmatively demonstrate that it is in your child’s best interest to remain with you, but also to avoid inadvertent conduct, which could be used to show that it would be detrimental to your child to remain with you. This article will address common pitfalls that parents encounter while requesting the Court to make custody determinations.
While many of these pitfalls should trigger your “well obviously” alarm, keep in mind that these occur frequently enough that an entire article had to be written about them.
Conduct Yourself as a Responsible Adult, at All Times
Dissolution is rarely a pleasant experience; you and your spouse are separating for a reason – reasons that were clearly irreconcilable. The process becomes exponentially less pleasant when the custody of your children is at issue.
Judges are aware that these situations are volatile in nature, and generally give parents a little leeway in how they conduct themselves at Court proceeding in relation to their ex-spouse; there are limits to this leeway however. In a round-about way, how you respond to high-conflict-stress reflects on how a Judge will perceive your abilities to properly parent and co-parent; something that is certainly included in determining a child’s best interests.
No matter how offensive or confrontational your spouse is, in and out of Court, you should always seek to take the high-road. This means never get close to a physical confrontation with your ex-spouse, never threaten your ex-spouse, and never express your anger in front of your child. All of this conduct could result in a denial of your request for custody and conditions on your visitation rights (i.e., supervised visitation).
Your responsibilities are not limited to the Court, you should always conduct yourself as a responsible adult in order to improve your chances that the Court will determine that it would be in a child’s best interest to remain with you. This means avoid posting photos on social media of you participating in irresponsible conduct, your ex-spouse will find it.
Example: Mary, who currently has custody over her daughter, likes to go out with her friends. Moreover, Mary frequently shares photos of her nights out with her friends. Over the course of 5 days, Mary posts several pictures of her smoking marijuana and drinking alcohol with her friends. Dan, who is seeking to modify the custody order to gain custody over his daughter, prints out these photos and shows them to the Court arguing that Mary would rather go out and get drunk all week than raise her daughter. The Court orders Mary to submit to drug testing and a condition of her custody.
While this is an extreme example, the point should be clear; what you post on social media will be used against you at some point.
Always Be Current on Your Child Support Obligations
Courts in California are very strict about parents meeting their support obligations to their children and will frequently use non-payment as the basis for significant restrictions on custody and visitation rights.
It is critical that you make timely child support payments every month. The Court will not show you leniency if you argue that the payments were too high after-the-fact. If the payments are too high, or your circumstances have changed, you must file a motion with the Court to modify your support obligations. The Court will work with you, if you give them a reason for why the support amount is to high, particularly where you can show that you have made significant efforts to meet those obligations. In custody cases, doing nothing and hoping for the best will never turn out well.
Always Communicate With Your Spouse Regarding Vacations
As mentioned at the outset, chances are you do not get along with your ex-spouse. It is natural to avoid communicating with them when you can, as there is a good chance it will devolve into an argument. Pair that with the flawed reasoning that they’re my children too, and it is easy to understand why parents frequently take their children on vacation (during their time with the child) without informing the ex-spouse; do not do this.
The Courts are concerned that a parent may use a surprise vacation as a pretext for kidnapping the child; it happens frequently. Similar to (2) above, the Court will not extend any leniency to you if did not even try to inform your ex-spouse and obtain consent for a vacation. The penalties could be incredibly harsh as well – you may even lose custody and be forced to submit to supervised visitation.
Always Respect the Court’s Determination
As is clearly the case, you or your ex-spouse are not going to be happy with the Court’s determination. What is truly mind-boggling, is that some people simply disregard the Court’s determinations when the outcome is unfavorable to them; do not do this.
As an initial matter, a Court order has the full effect of the law; your opinion on the matter is wholly irrelevant until another order is made. Therefore, it is critical that you comply with the Court’s order down to the smallest details. Failure to comply with the Court’s order could subject you to civil (or criminal) contempt, sanctions, and ultimately unfavorable rulings in the future.
Remember, you want the Court to understand that it is in your child’s best interest to remain with you; the Court is unlikely to believe that if you are unwilling to comply with their orders.
Don’t Forget Your Children Need You To Put Them First
As mentioned above, dissolutions involving children are very messy. Parents frequently feel like their entire world is falling apart; the stability of a spouse is gone, your finances are in limbo, and you don’t even know how often you will get to see your own child.
You can’t allow this turmoil to impact your ability to put your children first, a divorce is an even scarier reality for them – children depend on stability, and nothing is less stable than having their parents separate.
To that end, you don’t need to like your ex-spouse, but keep in mind that your ex-spouse is also going to be involved in raising your children going forward. You will need to show the Court an ability and willingness to co-parent with your ex-spouse, or the Court may deny custody to you.
This does not mean that you need to be friends with your ex-spouse, it simply means that you need to respect that they are also important in your children’s development. As such, it is essential that you refrain from attacking your ex-spouse’s character in front of your children. Further, always allow your ex-spouse their visitation time, regardless of whether they are in compliance with their obligations; the proper process is to inform the Court of their non-compliance and seek a modification to an existing order.
Don’t Forget the Status Quo
The Court’s primary concern is the best interest of the child, and it is generally accepted in the psychology of children that a stable living situation is critical. Thus, the Court pays very special attention to the status quo when making their custody determinations.
If the situation seems to be working well, with no significant negative impact on your child, the Court will be incredibly hesitant to issue an order changing the situation.
Example: Sam, the son of Mary and Dan, has been going to school with the same group of kids for the last 10 years. After the dissolution, Mary is planning on moving to another district, which would require Sam to change schools. Sam had straight A’s, a large group of friends, and was involved in numerous after school activities in the area. Mary is unlikely to be awarded custody in this situation, because the Court does not want to upset a situation that is benefiting the child.
The take away from this example, is that if something becomes the norm and doesn’t harm the child, the Court is likely to enshrine that norm in a Court order.
Don’t Forget That You and Your Attorney Are on the Same Side
Child custody is not the type of situation where you should represent yourself, the stakes are simply too high. To that end, conduct research and don’t be afraid to ask potential attorneys the hard questions – they appreciate a client who takes their case as seriously as the attorney will. \
There will be times where your attorney has to inform you of unfortunate truths and make suggestions that will be difficult and unpleasant to comply with. The lawyer is not doing these things out of malice, they are doing it to help you obtain the best outcome possible. Never lie to your attorney. California has the strictest attorney-client privilege rules in the country, and nothing you tell them will be conveyed to anybody else. Your attorney is not there to judge you, they are there to assist you.
If you are contemplating a dissolution involving children, please do not hesitate to contact us at (209) 910-9865 for a consultation.
